A Compendium of Trade and Commerce Laws in Swaziland

FEDERATION OF SWAZILAND EMPLOYERS AND CHAMBER OF COMMERCE

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OOFF TTRRAADDEE AANNDD

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P RODUCED BY THE SOUTHERN AFRICA GLOBAL COMPETITIVENESS HUB

WITH FUNDING FROM

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Compiled by

Cloete Henwood Dlamini, Mbabane 1st Floor Nedbank Centre, P.O. Box A972, Swazi Plaza, Mbabane, H100, Swaziland Tel: (+268) 404 3124/405 0385; Fax: (+268) 404 3136

On Behalf of the

With Funding from USAID/Southern Africa

For

The Federation of Swaziland Employers and Chamber of Commerce Emafini Business Centre, P.O. Box 72, Mbabane, H100, Swaziland Tel: (+268) 404 0768/404 4408; Fax: (+268) 404 409 0051 E-mail: [email protected] Website: www.business-swaziland.com

This compendium is made possible by the support of the American People through the United States Agency for International Development (USAID.) The contents of this compendium are the sole responsibility of the authors and do not necessarily reflect the views of USAID or the United States Government.

TABLE OF CONTENTS Page

INTRODUCTION...... 1 THE PREVENTION OF CORRUPTION ACT...... 2 Commentary...... 2 The Prevention of Corruption Act, 2006 ...... 3 THE INSURANCE ACT ...... 30 Commentary...... 30 The Insurance Act, 2005...... 31 THE FINANCIAL INSTITUTIONS ACT...... 70 Commentary...... 70 The Financial Institutions Act, 2005 ...... 71 THE RETIREMENT FUNDS ACT ...... 105 Commentary...... 105 The Retirement Funds Act, 2005...... 106 THE AUDIT ACT...... 136 Commentary...... 136 The Audit Act, 2005...... 136 FAIR TRADING ACT...... 144 Commentary...... 144 The Fair Trading Act, 2001...... 144 THE SALES TAX ACT...... 155 Commentary...... 155 The Sales Tax Act, 1983 ...... 158 The IMMIGRATION ACT ...... 176 Commentary...... 176 The Immigration Act 17 of 1982...... 176 The Immigration Regulations, 1987...... 188 THE TRADEMARKS ACT...... 222 Commentary...... 222 The Trade Marks Act 6 of 1981 ...... 226 The Trade Marks Regulations, 1989 ...... 243 THE IMPORT CONTROL ORDER...... 272 Commentary...... 272 The Import Control Order, 1976...... 272 THE INCOME TAX ORDER...... 275 Commentary...... 275 The Income Tax Order 12 of 1975 ...... 278 THe TRADING LICENSES ORDER...... 351 Commentary...... 351 The Trading Licenses Order 20 of 1975...... 352 THE CUSTOMS AND EXCISE ACT...... 359

i Commentary...... 359 The Customs and Excise Act, 1971...... 360 THE HIRE PURCHASE ACT ...... 439 Commentary...... 439 The Hire-Purchase Act, 1969 ...... 440 THe LIQUOR LICENSES ACT ...... 451 Commentary...... 451 The Liquor Licenses Act, 1964 ...... 451 THE BUILDING SOCIETIES ACT ...... 483 Commentary...... 483 The Building Societies Act, 1962...... 484 THE SHOP HOURS ACT...... 512 Commentary...... 512 The Shop Hours Act, 1955 ...... 512 THE GENEVA GENERAL AGREEMENT ON TARIFFS AND TRADE ACT...... 515 Commentary...... 515 The Geneva General Agreement on Tariffs and Trade Act, 1948 ...... 515 THE REGISTRATION OF BUSINESSES ACT...... 518 Commentary...... 518 The Registration of Businesses Act, 1933...... 518 THE COMPANIES ACT ...... 524 Commentary...... 524 The Companies Act, 1912 ...... 527 THE BILLS OF EXCHANGE ACT ...... 620 Commentary...... 620 The Bills of Exchange Act, 1902...... 621 THE PAWNBROKING ACT ...... 650 Commentary...... 650 The Pawnbroking Act, 1894...... 650

ii INTRODUCTION

We have here compiled a dossier of all the commercial legislation in Swaziland up to 30 June 2006. This compendium is meant to be a guide to the commercial legislation in Swaziland.

We have endeavoured to highlight in the form of a commentary, the important aspects of each piece of legislation and have given our interpretation to various sections thereof. However, the commentary should not be taken as a substitute to the legislation itself and it is incumbent upon the reader to revisit the actual legislation itself.

In preparing this compendium, we have attempted to keep it in the format and style of the previous “Guide to Swaziland Employment Laws” which was prepared by Peter Dodds in March 1988. This was done in order to ensure that the style of the guides remains relatively the same as they are primarily intended for the use of members of the Federation of Swaziland Employers and Chamber of Commerce (FSE & CC). The guide is prepared in a loose format, the intention being that it can easily be updated as the legislation is amended from time to time. In this way the guide can be kept up-to-date with relative ease.

We would like to convey our sincere thanks to the Chief Executive Officer of the FSE & CC, the Board and its members for not only granting us the opportunity to prepare this compendium but for their valuable input from time to time. We trust that users of this guide will find it to be user-friendly and helpful.

1 THE PREVENTION OF CORRUPTION ACT Commentary

The prevention of corruption Act first of all establishes an independent Anti-Corruption Commission which consists of a commissioner and two deputy commissioners. The commission has a right to appoint such investigating and other officers to assist it in the performance of its functions.

According to section 5 the only people who qualify to be appointed as commissioners are people who qualify for appointment as judge of the High Court of Swaziland. And that person has to be of high moral character and proven integrity, possess considerable experience and demonstrated competence in the conduct of public affairs or he should have acceptable academic qualification and experience in law, economics, accounting, criminal investigation, or any other related profession relevant to the functions of the commission.

The functions of the commission shall be to take the necessary measures for the prevention of corruption in public and private bodies including, in particular measures for; examining the practices and procedures of public and private bodies in order to facilitate the discovery of corrupt practices and secure the revision of their methods of works or procedures which in the opinion of the commissioner may be prone to or conducive to corrupt practices; Advising public and private bodies on the ways and means of preventing corrupt practices; Receiving and investigating complaints of alleged or suspected corrupt practices made against any person, and refer appropriate cases to the Director of Public Prosecutions; Investigating any alleged or suspected offences under this Act; Investigating any alleged or suspected contravention of any of the provisions of the fiscal and revenue laws; Assisting any law enforcement agency of the Government in the investigation of offences involving dishonesty or cheating of the public revenue; instructing, advising and assisting any person, at the request of that person, on the ways in which corrupt practices may be eliminated by that person; and to do all things necessary for the prevention of corruption and the furtherance of the objects of this Act.

According to section 11 of the Act the commissioner may, in the performance of its functions, authorise any officer of the commission to conduct an enquiry or investigation into alleged or suspected offences under this Act. Such officer may investigate the acquisition of any property, movable or immovable by or on behalf of that person or require that person to furnish and produce all relevant information and documents in respect of all expenditure incurred by that person personally or in respect the spouse, children or parents of that person, all liabilities incurred by him and any money acquired or sent outside Swaziland during the specified period.

Section 13 of the Act grants power to the investigating officer to search or arrest any person, enter and search any premises, and seize any property in any premises or in the possession of any person reasonably believed by the investigator to be connected with the offence.

Part III of the Act lists the offences that may be investigated under this Act, which offences include but are not limited to bribery, offences with regard to contracts and tenders, corrupt transactions by or with public or private bodies, cheating the public revenue, offences in relation to auctions, corrupt transactions by or with agents, conflict of interest, corrupt activities relating to law officers and public prosecutors, offences in respect of corrupt activities relating to politicians, etc.

Section 35 lays down the penalties attaching to the particular offences.

According to section 49 a person who holds a position of authority and who knows or ought reasonably to have known or suspected that another person has committed an offence has a duty to report the offence to any police officer or investigating officer of the anti- corruption commission. Failure to do so will result in a fine not exceeding E5000 (Emalangeni Five Thousand) or imprisonment not exceeding two (2) years or both. 2 The Act repeals the Prevention of Corruption Order, 1993

The Prevention of Corruption Act, 2006

(Act No. 3 of 2006)

Date of commencement: 6 JUNE 2006

AN ACT to investigate and punish corrupt activities, establish an Anti-Corruption Commission and to provide for other matters incidental to the prevention of corruption. ENACTED by the King and the Parliament of Swaziland

ARRANGEMENT OF CLAUSES

PART I PRELIMINARY

1. Short title. 2. Interpretation. PART II ESTABLISHMENT AND FUNCTIONS OF THE ANTI-CORRUPTION COMMISSION

3. Establishment of the Commission. 4. Appointment of Commissioner and Deputy Commissioners. 5. Qualifications for office of Commissioner or Deputy Commissioner. 6. Removal from office of Commissioner or Deputy Commissioner. 7. Acting Commissioner or Deputy Commissioner. 8. Officers of the Commission. 9. Applicability of laws governing public service. 10. Functions of the Commission. 11. Powers of the Commission. 12. Special powers of investigation. 13. Powers to enter, search and arrest. 14. Identity Card. 15. Impersonation and procurement of Commission's officers. 16. Resisting or obstructing the Commissioner etc. 17. Immunity of Commissioner, Deputy Commissioner etc. 18. Prohibition of disclosure of information. 19. Privilege from disclosure in legal proceedings. 20. Annual reports. PART III OFFENCES

21. Bribery. 22. Offence for giving assistance etc. with regard to contracts and tenders. 23. Corrupt transactions by or with public or private bodies. 24. Cheating of public revenue. 25. Offences in relation to auctions. 26. Corrupt transactions by or with agents. 27. Conflict of interest.

3 28. Corrupt activities relating to law officers and public prosecutors. 29. Corrupt activities relating to witnesses etc. during certain proceedings. 30. Offences in respect of corrupt activities relating to politicians. 31. Offences in respect of corrupt activities relating to sporting events. 32. Offences in respect of gambling games or games of chance. 33. Offences in respect of corrupt activities relating to judicial officers. 34. Possession of property etc. without reasonable explanation. 35. Penalties. 36. Additional penalty. 37. Dismissal on conviction. 38. Endorsement of Register. 39. Attempting, inciting, etc commission of offences. 40. Briber and bribed to be guilty even if purpose not achieved. 41. Money laundering 42. General offence of corruption.

PART IV REGISTER FOR TENDER DEFAULTERS

43. Establishment of Register. 44. Designation of Register. 45. Powers, duties and functions of Registrar. 46. Access to Register. 47. Regulations pertaining to Register.

PART V PRESUMPTIONS

48. Presumptions.

PART VI MISCELLANEOUS MATTERS

49. Duty to report corrupt transactions. 50. Application for restraining order and forfeiture order. 51. Surrender of Passports. 52. Return of passport. 53. Bail from persons about to leave Swaziland after commencement of investigation. 54. Evidence of pecuniary resources or property. 55. Certificates as to official emoluments, etc. 56. Protection of informers. 57. False reports to commission. 58. Regulations. 59. Repeal of the Prevention of Corruption Order, 1993. 60. Transitional provisions.

PART I PRELIMINARY

Short title and Commencement

1. This Act may be cited as the Prevention of Corruption Act, 2006 and shall come into force on the date to be appointed by the Minister by notice in the Gazette.

Interpretation

4 2. In this Act, unless the context otherwise requires -"advantage" means -

(a) any gift, loan, fee, reward or commission consisting of money or of any valuable security or of other property or interest in property of any description;

(b) any office, employment or contract;

(d) any other service, favour or gratification other than entertainment;

(e) the exercise or forbearance from the exercise of any right, power or duty; or

(f) any offer, undertaking or promise, whether conditional or unconditional, of any advantage referred to in paragraph(a), (b), (c), (d) or (e);

"agent" means any authorized representative who acts on behalf of a principal and includes a director, officer, employee or other person authorized to act on behalf of the principal, and "agency" has a corresponding meaning;

"animal" means any living vertebrate member of the animal kingdom, domestic or wild, but does not include a human being;

"banker's books" means -

(a) any ledger, ledger card, statement of account, day book, cash book, account book or other book or document whatsoever, used in the ordinary business of banking;

(b) any cheque, voucher, record card, report, letter or other document whatsoever;

"business" means any business, trade, occupation, profession, calling, industry or undertaking of any kind, or any other activity carried on for gain or profit by any person within Swaziland or elsewhere, and includes all property derived from or used in or for the purpose of carrying on such other activity, and all the rights and liabilities arising from such other activity;

"company books" means the annual return and balance sheets and any ledger, day book, cash book, account book, bank book, report, letter or other book or document used in the ordinary business of a company;

"commission" means the Anti-Corruption Commission established in terms of section 3;

"commissioner" means the person appointed in terms of section 4 as the Commissioner of the Commission;

"court" means the High Court or a Magistrate's Court, as the case may be;

"deputy Commissioner" means a person appointed in terms of section 4 as a Deputy Commissioner of the Commission;

"document" includes any register, book, record, tape recording, any form of computer input or output, and any other material, whether produced mechanically, electrically or manually or by any other means;

"entertainment" means the provision of food or drink for consumption on the occasion when it is provided and any other entertainment connected with or provided at the same time as such food or drink;

"game of chance" includes a lottery, lotto, numbers game, scratch game, sweepstake, or sports pool or any such similar game;

"investigating officer" means any person appointed or authorized by the Commissioner to exercise the powers of an investigating officer under this Act and "investigator" has the corresponding meaning;

"judicial officer" means a superior court judge, magistrate, Master of the High Court, Registrar of a superior court; clerk of court, an arbitrator, or a member of an administrative authority exercising quasi judicial functions or the presiding officer of a Swazi Court established under the Swazi Courts Act, No.80 of 1950;

5 "law officer" means the Attorney General, Crown Counsel or any other person delegated generally or specially by the Attorney General in terms of the Law Officers Act, 1966 or any other law;

"member of Parliament" means a person who is either a Senator or a member of the House of Assembly

"Minister" means the Minister responsible for justice; ,

"passport" includes a travel document;

"politician" means any person who holds a position listed in the schedule to this Act; "principal" includes-

(a) any employer;

(b) any beneficiary under a trust and any trust estate; person;

(d) in the case of a legal representative referred to in the definition of "agent", the person

represented by such legal representative;

"private body" means any person or organization not being a public body and it also means a voluntary organization, charitable institution, club, company, firm or partnership;

"property" means money or any other movable, immovable, corporeal or incorporeal thing, whether situated in Swaziland or elsewhere and includes any rights, privileges, claims, securities and any interest therein and all proceeds thereof;

"public body" means

(a) any Government ministry or department or parastatal; or,

(b) any other functionary or institution or traditional council (libandla) when exercising a power or performing a duty or function in terms of the Constitution or any other law or custom;

"public corporation" means any body, whether corporate or not, in which the Government, the Swazi Nation, or the Swazi National Treasury, holds the majority shares or any controlling financial or monetary interest;

"public office" includes judicial office or any office or position (whether fulltime or not) held by any person engaged in a public body or private body or any office or position (whether fulltime or not) in respect of which emoluments or allowances are payable from public funds or from Swazi National Treasury;

"public officer" means the holder of a public office;

"public prosecutor" means the Director of Public Prosecutions and includes any person delegated generally or specially by the Director of Public Prosecutions under the Criminal Procedure and Evidence Act, 1938 or any other law;

“sporting event" means any event or contest in any sport, between individuals or teams, or in which an animal competes, and which is usually attended by the public and is governed by rules which include the constitution, rules or code of conduct of any sporting body which stages any sporting event or of any regulatory body under whose constitution, rules or code of conduct the sporting event is conducted; and

"spouse" includes concubine, cohabitant, fiancée or lover.

PART II ESTABLISHMENT AND FUNCTIONS OF THE ANTI-CORRUPTION COMMISSION

Establishment of the Commission

6 3. (1) There is established an independent Anti-Corruption Commission which consists of a Commissioner and two Deputy Commissioners.

(2) The Commission shall have such other officers as may be appointed in terms of section 8. Appointment of Commissioner and Deputy Commissioners.

4. (1) The Commissioner shall be appointed by the King on the advice of the Judicial Service Commission and shall hold office for a period not exceeding five years and may be re-appointed for a single term, on such terms and conditions as may be determined.

(2) A Deputy Commissioner shall be appointed by the King on the advice of the Judicial Service Commission and shall hold office for a period not exceeding five years and may be re-appointed for a single term, on such terms and conditions as may be determined.

(3) The Commissioner shall be responsible for the proper administration of the Commission.

(4) In the performance of their functions and in the carrying out of their duties the Commissioner and the Deputy Commissioners shall be independent and shall not be subject to the direction or control of any person or authority.

(5) The salary, allowance, gratuity or pension of a member of the Commission shall not be varied to the disadvantage of that member.

Qualifications for office of Commissioner and Deputy Commissioners

5. (1) Subject to subsection (2)(a) a person shall not qualify for appointment as Commissioner unless that person qualifies for appointment as a judge of the High Court.

(2) A person shall not qualify for appointment as a Deputy Commissioner unless that person-

(a) is of high moral character and proven integrity; and

(b) possesses considerable experience and demonstrated competence in the conduct of public affairs; or

(c) has acceptable academic qualification and experience in law, economics, accounting, criminal investigation, or any other related profession relevant to the functions of the Commission.

Vacation of office of Commissioner or Deputy Commissioner

6. (1) A member of the Commission may -

(a) resign office by written notice addressed to the Chairman of the Judicial Service Commission; and

(b) be removed by the King from office for inability to perform the functions of the office whether such inability arises from infirmity of body or mind or any other cause or for stated misconduct.

(2) The statement of misconduct referred to in subsection (l)(b) shall be referred to the Judicial Service Commission which shall investigate the matter.

Acting Commissioner or Deputy Commissioner

7. (1) Where the office of the Commissioner is vacant or the Commissioner is absent from duty or unable for any other reason to perform the functions of his office, any of the Deputy Commissioners shall on nomination by the Minister act as the Commissioner.

(2) Where the Commissioner and a Deputy Commissioner are absent from duty or unable for any other reason to perform the functions of their office the King may, subject to sections 4 and 5, appoint another person to act as the Commissioner or a Deputy Commissioner.

Officers of the Commission

8. (1) The Commission shall appoint such investigating and other officers to assist the Commission in the performance of its functions under this Act as the Commission may determine after consultation with the Minister.

7 (2) Officers recruited from other Government agencies shall be transferred from the public service or any other Commission without prejudice to their accrued benefits.

(3) The Commissioner may, subject to the relevant applicable law, terminate the appointment of an officer of the Commission if the Commissioner is satisfied that it is in the interest of the Commission to terminate such appointment and the Commissioner shall give reasons for such termination.

Applicability of laws governing public sendee

9. An office in the Commission is a public office, and accordingly, except as otherwise provided in this Act or Regulations, the Commissioner, Deputy Commissioners and other officers of the Commission are subject to such laws and regulations as are generally applicable to officers of the public service of the particular designation.

Functions of the Commission

10. (1) The functions of the Commission shall be to -

(a) take necessary measures for the prevention of corruption in public and private bodies including, in particular measures for -

(i) examining the practices and procedures of public and private bodies in order to facilitate the discovery of corrupt practices and secure the revision of their methods of works or procedures which, in the opinion of the Commissioner, maybe prone or conducive to corrupt practices;

(ii) advising public and private bodies on the ways and means of preventing corrupt practices, and on changes in the methods of work or procedures of those public and private bodies compatible with the effective performance of their duties, which the Commissioner considers necessary to reduce the likelihood of the occurrence of corrupt practices;

(iii) disseminating information on the evil and dangerous effects of corrupt practices on the society;

(iv) enlisting and fostering public support against corrupt practices;

(b) receive and investigate complaints of alleged or suspected corrupt practice made against any person, and refer appropriate cases to the Director of Public Prosecutions;

(c) investigate any alleged or suspected offences under this Act, or any other offence disclosed during such an investigation;

(d) investigate any alleged or suspected contravention of any of the provisions of the fiscal and revenue laws of the country;

(e) assist any law enforcement agency of the Government in the investigation of offences involving dishonesty or cheating of the public revenue;

(f) investigate the conduct of any public officer which in the opinion of the Commissioner may be connected with or conducive to corrupt practices;

(g) instruct, advise and assist any person, on the request of that person, on ways in which corrupt practices may be eliminated by that person; and

(h) do all such things as may be necessary for the prevention of corruption and the furtherance of the objects of this Act.

(2) The Commission may decline to conduct an investigation into any complaint alleging an offence under this Act or to proceed further with an investigation if the Commission is satisfied that the complaint is trivial, frivolous, vexatious or not made in good faith.

(3) In every case where the Commission declines to conduct an investigation the Commission shall inform the complainant in writing of its decision, within a reasonable time, but shall not be bound to assign reasons for so declining.

8 Powers of the Commission

11. (1) In the performance of the functions of the Commission under this Act, the Commissioner may-

(a) authorize in writing any officer of the Commission to conduct an inquiry or investigation into alleged or suspected offences under this Act;

(b) require any public officer or person to answer questions concerning the duties of any other public officer or person and order the production for inspection of any orders, directives, office instructions relating to the duties of such other public officer or person;

(c) require any person in charge of any Ministry, Department or other establishment of the Government or head, Chairman, Manager or Chief Executive Officer of any public body or private body to produce or furnish within such time as may be specified by the Commissioner, any document or a certified true copy of any document which is in the possession or under the control of that person and which the Commissioner considers necessary for the conduct of investigation into alleged or suspected offence under this Act.

(2) In the performance of the duties under this Act, the Commissioner or, if acting under the authority of a warrant issued for that purpose by or on behalf of the Commissioner, an officer of the Commission, shall have -

(a) access, where necessary with a court order, to all books, records, returns, reports, data stored electronically on computer or otherwise and any other documents relating to the functions of any Government Ministry, Department or other establishment, or parastatal, public body or private body;

(b) access at any time, where necessary with a court order, to the premises of any Government Ministry, Department or other establishment, or parastatal, public body or private body, or to any vessel, boat, train, aircraft or any vehicle if the Commissioner or officer has reason to suspect that any property acquired in contravention of this Act has been placed, deposited or concealed in that vessel, boat, train, aircraft or vehicle.

(3) Any person who accompanies or assists the Commissioner, the Deputy Commissioner or any officer of the Commission to enter into any premises or upon any vessel, boat, train, aircraft or any vehicle, as the case may be, shall enjoy the same immunity as is conferred upon the Commissioner or an officer of the Commission in terms of section 17.

Special powers of investigation

12. (1) Where it appears to the Commissioner that an offence under this Act may have been committed by any person, the Commissioner may for the purposes of an investigation of that offence authorize an investigating officer to exercise the following powers, that is, to -

(a) investigate the acquisition of any property (whether movable or immovable) in or outside Swaziland by or on behalf of that person, during such period as may be specified in the authority;

(b) require that person to furnish and produce all relevant information and documents in respect of-

(i) all expenditure incurred by that person personally or in respect of the spouse, children or parents of that person;

(ii) all liabilities incurred by that person, the agent or trustee of that person and specifying in respect of each such liability whether it was incurred jointly (and, if so, with whom) or severally;

(iii) any money acquired or sent outside Swaziland during the period as may be specified in the authority;

(c) investigate and inspect any bank account or other account of whatever description or kind and any banker's books or company books of, or relating to, the person named or otherwise identified in the authority;

(d) require from any person production of any accounts, books or company books of, or relating to, the person named or otherwise identified in the authority and the disclosure of all or any information relating to those accounts, books or documents;

(e) take originals or certified true copies of any accounts, books or documents or any relevant entry in those accounts, books or documents;

9 (f) require any person who is being investigated to furnish the investigating officer with a sworn statement containing any information referred to in paragraphs (a) and (b).

(2) Any person, who has been lawfully required under subsection (1) to disclose any information or to produce any accounts, books or documents to an investigating officer shall, notwithstanding any other law to the contrary, comply with that requirement.

(3) Any person who -

(a) without reasonable excuse fails or neglects to disclose any information or to produce any accounts, books or documents required by an investigating officer under subsection (2); or

(b) obstructs an investigating officer in the execution of an authority made under subsection (1),

commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand emalangeni or to imprisonment not exceeding five years or to both.

(4) Where, in any proceedings for an offence under Part III, it is proved that the person charged with the offence refused to furnish a sworn statement required in terms of subsection (1) (f) when requested to do so that refusal shall, unless reasonable cause is shown, be treated as supporting any evidence given on behalf of the prosecution, or as rebutting any evidence given on behalf of the defence as regards the manner of the acquisition of the properties mentioned in paragraph (1) (a).

(5) The information referred to in paragraph (1 )(f) shall be admissible as evidence during the trial of that person and if that person submits to be a witness, that information may be used in cross-examination and for purposes of impeaching the credibility of that person.

Powers to enter, search or arrest

13. (1) Subject to the provisions of subsection (2), an investigator or officer authorized by the Commissioner who reasonably suspects that an offence has been committed under this Act may -

(a) search or arrest any person;

(b) enter and search any premises, or

(i) in any premises; or,

(ii) in the possession of any person reasonably believed by the investigator or officer to be connected with the

offence.

(2) The investigator or officer shall not enter or search any premises or arrest any person under subsection (1) without an order in writing issued by a judge in chambers on the application of that investigator or officer.

(3) The application under subsection (2) shall be in writing and must -

(a) indicate the identity of the -

(i) investigator or officer who will enter and search the premises or arrest the person; (ii) person to be searched and or

arrested; and, (iii) premises to be entered and searched;

(b) specify the grounds for the application;

10 (d) indicate the period for which order is reacquired.

(4) A person shall not be searched under this section except by a person of the same sex.

(5) A person arrested under this section shall be taken as soon as practicable to a police station and be brought before a court of law within a reasonable time.

Identity card

14. (1) The Commissioner shall issue to an officer of the Commission an identity card which shall be prima facie evidence of the appointment of that officer under section 8.

(2) On termination of the appointment, the officer shall return the identity card. Impersonation and procurement of

officers

15. Any person who falsely pretends to be -

(a) an officer of the Commission or to have any of the powers of an officer under this Act, or under any authorization or warrant issued under this Act; or

(b) able to procure an officer of the Commission with the duties of that officer,

commits an offence and shall, on conviction, be liable to a fine not exceeding twenty thousand Emalangeni or to imprisonment not exceeding two years or to both.

Resisting or obstructing the Commissioner, etc.

16. Any person who -

(a) assaults, obstructs or resists the Commissioner, Deputy Commissioner or an officer of the Commission in the execution of their duties; or

(b) unlawfully hinders or delays the Commissioner, Deputy Commissioner or an officer of the Commission in effecting entry into or upon any premises, vessel, train, boat, aircraft or vehicle,

commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand Emalangeni or to imprisonment not exceeding five years or to both.

Immunity of Commissioner, Deputy Commissioner etc.

17. No civil or other proceeding shall be brought against the Commissioner, Deputy Commissioner or an officer of the Commission in respect of any act or thing done or omitted to be done in good faith in the performance of their functions under this Act.

Prohibition of disclosure of information

18. Any person who, without lawful authority or reasonable excuse -

(a) discloses to any other person who is the subject of an inquiry or investigation under this Act the fact that that other person is subject to that inquiry or investigation or any details of that inquiry or investigation; or

(b) publishes or discloses to any other person either the identity of a person who is the subject of an inquiry or investigation or any details of that inquiry or investigation,

commits an offence and shall be liable, on conviction, to a fine not exceeding twenty thousand Emalangeni or to imprisonment not exceeding two years or to both.

Privilege from disclosure in legal proceedings

11 19. In any legal proceeding the production of the report or record of proceedings of any inquiry or investigation carried out by the Commission into any alleged or suspected offence under Part III shall be privileged if the Minister certifies that the production of that report or record is not in the public interest.

Annual Reports

20. (1) The Commissioner shall, not later than three months after the end of each financial year, submit to the Minister a report on the activities of the Commission during that year.

(2) The report of the Commissioner shall not contain the facts or findings of any pending investigation.

(3) The Minister shall, within thirty days after receipt of the report during the sitting of Parliament, cause the report to be laid before Parliament and if Parliament is not then sitting, within fourteen days of the next sitting of Parliament.

PART III OFFENCES Bribery

21. (1) A person who, whether in Swaziland or elsewhere, offers any advantage to any public officer as an inducement to, or a reward for, or otherwise on account of that public officer-

(a) performing or forbearing to perform or having performed or forborne to perform any act as such public officer;

(b) expediting, delaying, hindering or preventing or having expedited, delayed, hindered or prevented, the performance of any act, whether by that officer or by another public officer as such public officer; or

(c) assisting, favouring, hindering or delaying or having assisted, favoured, hindered or delayed, any other person in the transaction of any business with a public or private body, commits an offence.

(2) A public officer who, whether in Swaziland or elsewhere, solicits or accepts any advantage as an inducement to, or a reward for or otherwise on account of the public officer -

(a) performing or forbearing to perform or having performed or forborne to perform any act as such public officer;

(b) expediting, delaying, hindering or preventing, or having expedited, delayed, hindered or prevented, the performance of any act, directly or indirectly, as such public officer; or

(c) assisting, favouring, hindering or delaying or having assisted, favoured, hindered or delayed, any person in the transaction of any business with a public or private body, commits an offence. Offences with regard to contracts and tenders.

22. (1) A person who, whether in Swaziland or elsewhere, gives or agrees or offers to give or promises any advantage to any public officer as an inducement to or a reward for or otherwise on account of the public officer giving assistance or using influence in, or having given assistance or used influence in-

(a) the promotion, execution or procurement of-

(i) a contract or tender for any contract with a public or private body for the performance of any work or the provision of any service or the supply of any goods; or

(ii) a subcontract or tender for a subcontract to perform any work, provide any goods required to be performed, provided or supplied under any contract with a public or private body; or

(b) the payment of the price or other consideration or money stipulated or otherwise provided in any such contract, subcontract or tender, commits an offence of corrupt activities relating to contracts and tenders.

(2) A public officer who solicits or demands or accepts any advantage as an inducement to or a reward for or otherwise on account of that person giving assistance or using influence in or having given assistance or used influence in -

12 (a) the promotion, execution or procurement of; or

(b) the payment of the price or other consideration or money stipulated or otherwise provided in any contract or subcontract or tender referred to in subsection (1), commits an offence of corrupt activities relating to contracts and tenders. Corrupt transaction by or with public or private bodies

23. A person who, directly or indirectly, alone or in conjunction with any other person (whether in Swaziland or elsewhere)-

(a) solicits or demands or accepts from another person either for that person or for any other person, any advantage as an inducement or a reward for, or on account of that person, doing or forbearing to do or having done or forborne to do anything in relation to any matter or transaction with which any public or private body is or may be concerned;

(b) gives or offers or promises to give any advantage to another person either for the benefit of that other person or any other person as an inducement or a reward for or on account of any such other person doing or forbearing to do or having done or forborne to do anything in relation to any matter or transaction with which any public or private body is or may be concerned, commits an offence of corrupt activities relating to public or private bodies. Cheating the public revenue

24. (1) A person commits the offence of cheating the public revenue where as a result of the fraudulent conduct of that person, money is diverted from the revenue and thereby depriving the public revenue of money to which the Government is entitled.

(2) A public official or any person commits an offence of cheating the public revenue where that official or person diverts any property belonging to the Government or its agencies, which that official or person has received by virtue of the position of that official or person, to an independent agency or individual for purposes unrelated to the purposes for which that property was intended, for the benefit of that official or that person or of a third party.

Offences in relation to auctions

25. (1) A person who, directly or indirectly -

(a) being an auctioneer, demands or accepts or agrees or offers to accept any advantage for the benefit of that auctioneer or of another person -

(i) in order to conduct the bidding process at an auction in a manner so as to favour or prejudice a specific person; or,

(ii) as a reward for acting as contemplated in subparagraph (i);

(b) being an auctioneer, gives or agrees or offers to give any advantage to any other person whether for the benefit of that auctioneer or of that other person;

(c) demands or accepts or agrees to accept an advantage for the benefit of that person or of another person as an inducement or reward for or otherwise on account of that person refraining or having refrained from bidding at an auction conducted by or on behalf of any public body; or,

(d) gives or agrees or offers to give another person an inducement or reward for or otherwise on account of that other person refraining or having refrained from bidding at any auction conducted by or on behalf of any public body,

commits an offence of corrupt activities relating to auctions. (2) For an offence to be committed under subsection

(l)(b) the act complained of must -

(a) influence that person to -

(i) refrain from bidding at an auction; or

(ii) participate in the bidding process at an auction in such a manner as to get a specific offer for the article or to sell the article at a specific amount or to sell the article to a specific bidder; or,

(b) be a reward for that person for acting as contemplated in subparagraph (i).

13 Corrupt transactions by or with agents

26. (1) An agent commits an offence of corruption where that agent corruptly demands or accepts, or agrees or offers to accept from any person, for himself or for any other person any advantage as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to the affairs or business of the principal of that agent, or for showing or forbearing to show favour or disfavour to any person in relation to the affairs or business of the principal of that agent.

(2) A person commits an offence of corruption where that person corruptly gives or agrees to give or offers to give to any agent any advantage as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act or for showing or forbearing to show favour or disfavour to any person in relation to the affairs or business of the principal of that agent.

(3) A person or an agent commits an offence of corruption where that person knowingly gives to an agent, or where an agent knowingly uses with intent to deceive the principal of that agent, any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to the knowledge of that person or agent is intended to mislead the principal.

Conflict of interests

27 (1) A member or an employee of a public body commits an offence of corruption where that member or employee or an immediate member of the family of that member or employee has a direct or indirect interest in any company or undertaking with which that public body proposes to deal, or that member or employee has a personal interest in any decision which that public body is to make, and that member or employee, knowingly fails to disclose the nature of that interest, or votes or participates in the proceedings of that public body relating to that dealing or decision.

(2) It is a defence to a charge under this section where the person having an interest has first made in writing to the public body the fullest disclosure of the exact nature of interest and has been permitted after that disclosure to take part in the proceedings relating to that dealing or decision.

(3) For the purposes of this section "member of family" includes a paramour. Corrupt activities relating to law officers and public prosecutors

28 (1) Subject to the provisions of subsection (2), a person who -

(a) being a law officer or public prosecutor, directly or indirectly, demands or accepts or agrees or offers to accept any advantage, whether for the benefit of that officer or prosecutor or for the benefit of another person;

(b) directly or indirectly gives or agrees or offers to give any advantage to a law officer or public prosecutor, whether for the benefit of that person or the benefit of another person,

commits an offence of corrupt activities relating to law officers and public prosecutors.

(2) An act under subsection (1) to constitute an offence must induce the law officer or public prosecutor to act or influence another person so to act in a manner -

(a) that amounts to the -

(i) illegal, dishonest, unauthorized, incomplete or biased; or

(ii) misuse or selling of information or material acquired in the course of the

exercise, carrying out or performance of any powers duties or functions arising out of a constitutional, statutory, contractual, fiduciary or any other legal obligation;

(b) that amounts to -

(i) the abuse of a position of authority;

(ii) a breach of trust; or,

14 (iii) the violation of a legal duty or a set of rules;

(d) that amounts to any other unauthorized or improper inducement to do or not to do anything.

(3) For purposes of subsection (1), "to act" includes -

(a) performing or not adequately performing a function relating to the -(i) institution or conducting of

civil or criminal proceedings;

(ii) carrying out of any necessary functions incidental to the institution or conducting of civil or criminal proceedings; or

(iii) continuation or discontinuation of civil or criminal proceedings;

(b) delaying, hindering or preventing the performance or commencement of a civil or prosecutorial function;

(c) aiding or assisting any particular person in the performance of a function relating to the institution or conducting of criminal or civil proceedings;

(d) showing any favour or disfavour to any person in the performance of a function relating to the institution or conducting of criminal or civil proceedings; or

(e) exerting any improper influence over the decision-making of any person, including a member of the office of the Attorney General or the Director of Public Prosecutions or a judicial officer, performing official functions.

Corrupt activities relating to witnesses etc. during certain proceedings

29. (1) A person who, directly or indirectly demands or accepts or agrees or offers to accept any advantage from another person, whether for the benefit of that person or for the benefit of any other person, in return for -

(a) testifying in a particular way or fashion or in an untruthful manner in a trial, hearing or other proceedings before any court, judicial officer, committee, commission or officer authorized by law to hear evidence or take testimony;

(b) withholding testimony, or withholding a record, document, docket or other object at any trial, hearing or proceedings;

(d) altering, destroying, mutilating, or concealing a record, document, docket or other object for use at any trial, hearing or proceedings;

(e) giving or withholding information relating to or contained in a docket;

(f) evading legal process summoning that person to appear as a witness or to produce any record, document, docket or other object at any trial, hearing or proceedings; or

(g) being absent from any trial, hearing or proceedings,

commits an offence of corrupt activities relating to witnesses and evidential material during certain proceedings.

(2) A person who, directly or indirectly, gives or agrees or offers to give any advantage to another person, whether for the benefit of that person or for the benefit of any other person, with the intent to-

(a) influence, delay or prevent the testimony of that person or another person as a witness in a trial, hearing or other proceedings before any court, judicial officer, committee, commission or any officer authorized by law to hear evidence or take testimony; or

15 (b) cause or induce a person to -

(i) testify in a particular way or fashion or in an untruthful manner in a trial, hearing or other proceedings before any court, judicial officer, committee, commission or officer authorized by law to hear evidence or take testimony;

(ii) withhold testimony or to withhold a record, document, docket or other object at any trial, hearing or proceedings;

(iii) give or withhold information relating to any aspect at any trial, hearing or proceedings;

(iv) alter, destroy, mutilate, or conceal a record, document, docket or other object with the intent to impair the availability of such record document, docket or other object for use at any trial, hearing or proceedings;

(v) give or withhold information relating to or contained in a docket;

(vi) evade legal process summoning that person to appear as a witness or to produce any record, document, docket or other object at any trial, hearing or proceedings; or

(vii) be absent from any trial, hearing or other proceedings,

commits an offence of corrupt activities relating to witnesses and evidential material during certain proceedings.

(3) A person who, directly or indirectly, intimidates or uses physical force, or improperly persuades or coerces another person with the intent to -

(a) influence, delay or prevent the testimony of that other person or any other person as a witness in a trial, hearing or other proceedings before any court, judicial officer, committee, commission, or some other officer authorized by law to hear evidence or take testimony; or (b) cause or induce any other person to -

(ii) withhold testimony or to withhold a record, document, docket or other object at any trial, hearing or proceedings;

(iii) give or withhold information relating to any aspect at any trial, hearing or proceedings;

(iv) alter, destroy, mutilate, or conceal a record, document, docket or other object with the intent to impair the availability of that record, document, docket or other object for use at any trial, hearing or proceedings;

(v) give or withhold information relating to or contained in a docket;

(vi) evade legal process summoning that person to appear as a witness or to produce any record, document, docket or other object at any trial, hearing or proceedings; or

(vii) be absent from any trial, hearing or other proceedings,

commits an offence of corrupt activities relating to witnesses and evidential material during certain proceedings.

Offences in respect of corrupt activities relating to politicians

30. A person who, directly or indirectly -

(a) being a politician, demands or accepts or agrees or offers to accept any advantage from another person, whether for the benefit of that politician or for the benefit of any other person; or

(b) gives or agrees or offers to give any advantage to a politician, whether for the benefit of that person or for the benefit of another person,

in order for that politician or that other person to act or to influence another person so to act, in a manner,

16 (i) illegal, dishonest, unauthorized, incomplete, biased; or

(ii) misuse or selling of information or material acquired in the course of the exercise, carrying out or performance of

any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation

(d) that amounts to the -

(i) abuse of a position of authority,

(ii) a breach of trust, or (iii) the violation of a legal duty or a set of rules;

(e) designed to achieve an unjustified result; or

(f) that amounts to any other unauthorized or improper inducement to do or not to do anything, commits an offence of corrupt activities relating to politicians.

Offences in respect of corrupt activities relating to sporting events

31. A person who, directly or indirectly -

(a) demands or accepts or offers to accept any advantage whether for the benefit of that person or any other person; or

(b) gives or agrees or offers to give any advantage, whether for the benefit of that person or any other person in return or as a reward for

(i) engaging in any act which constitutes a threat to or undermines the integrity of any sporting event, including, in any way, influencing the run of play or the outcome of a sporting event;

(ii) not reporting the act referred to in paragraph (c) to the managing director, chief executive officer, or to any other person holding a similar post or in authority in the sporting body or regulatory authority of the sporting event concerned or at the nearest police station or to the Anti-Corruption Commission; or

(c) carries into effect any scheme which constitutes a threat to or undermines the integrity of any sporting event, including, in any way, influencing the run of play or the outcome of a sporting event, commits the offence of corrupt activities relating to sporting events. Offences in respect of gambling games or games of chance

32. A person who, directly of indirectly -

(a) demands or accepts or agrees or offers to accept any advantage from any other person whether for the benefit of that person or for the benefit of another person; or

(b) gives or agrees or offers to give to any other person any advantage whether for the benefit of that other person or for the benefit of another person in return or as a reward for -

(i) engaging in any conduct which constitutes a threat to or undermines the integrity of any gambling game or game of chance; or

(ii) in anyway, influencing the outcome of a gambling game or game of chance; or

(c) carries into effect any scheme which constitutes a threat to or undermines the integrity of any gambling game or a game of chance, including, in any way, influencing the outcome of a game or a game of chance,

commits the offence of corrupt activities relating to gambling games or games of chance. Offences In respect of corrupt activities relating to judicial officers

33. (1) Subject to the provisions of subsection (2), a person who directly or indirectly -

17 (a) gives or offers or agrees to give or offer any advantage to a judicial officer whether for the benefit of that person or another person; or

(b) being a judicial officer, demands or accepts or agrees or offers to accept any advantage from any other person, whether for the benefit of that judicial officer or another person, commits the offence of corrupt activities relating to judicial officers.

(2) An act under subsection (1) to constitute an offence must induce the judicial officer to act or influence another person so to act in a manner -

(a) that amounts to the -

(i) illegal, dishonest, unauthorized, incomplete or biased; or

(ii) misuse or selling of information or material acquired in the course of the

exercise, carrying out or performance of any powers, duties or functions, arising out of a constitutional, statutory contractual, fiduciary or any other legal obligation;

(b) that amounts to -

(i) the abuse of a position of authority;

(ii) a breach of trust; or,

(iii) the violation of a legal duty or a set of rules;

(d) that amounts to any other unauthorized or improper inducement to do or not to do anything.

(3) For the purposes of sub-section (1), "to act" includes-

(a) performing or not adequately performing a judicial function;

(b) making decisions affecting life, freedoms, rights, duties, obligations and property of persons;

(d) aiding, assisting or favouring any particular person in conducting judicial proceedings or judicial functions;

(e) showing any favour or disfavour to any person in the performance of a judical function; or

(f) exerting any improper influence over the decision-making of any person, including another judicial officer or a law officer or public prosecutor, performing their official functions.

Possession of property etc. without reasonable explanation

34. (1) Subject to the provisions of subsection (2), a person who being or having been a public officer -

(a) maintains a standard of living above that which is commensurate with the present or past official emoluments of that person; or,

(b) is in control of pecuniary resources or property disproportionate to the present or past official emoluments of that person

shall be presumed to have committed an offence under section 21,22,23,24,25,26,28,29, 30, 31, 32 or 33 and accordingly liable to the penalty prescribed in section 35.

18 (2) The presumption referred to in subsection (1) shall not apply in a case where the public officer gives the Commissioner or investigating officer a satisfactory account or explanation of how the officer maintains that standard of living and how the pecuniary resources or property came under the control of that officer.

(3) Where the Commissioner has reasonable ground to suspect that any person who has no known source of income or who is not known to be engaged in any gainful employment possesses or is in control of any property or pecuniary resources, the Commissioner shall request that person to give satisfactory explanation in writing as to how the property or pecuniary resources have been acquired by or come under the control of that person.

(4) Where the person mentioned in subsection (3) is unable to give any satisfactory account or explanation that person shall be presumed to have committed an offence and liable on conviction to the penalty prescribed in section 35(1).

(5) Where a court is satisfied in the proceedings for an offence under sub-section (1) or (4) that there is reason to believe that a person was holding pecuniary resources or property in trust or otherwise on behalf of the accused, or acquired those resources or that property as a gift or a loan without adequate consideration, from the accused, having regard to the relationship of that person to the accused, those resources or that property shall be presumed to have been in the control or in the possession of the accused.

(6) In this section "official emoluments" includes a pension or gratuity or any other retirement benefit payable under any law for the time being in force or under any terms and conditions of service or employment applicable to the public officer.

Penalties

35. (1) Aperson who is convicted of an offence referred to in section 21,22,23, 24,25,26, 27 or 34 shall be liable to a fine not exceeding one hundred thousand Emalangeni or imprisonment not exceeding ten years or to both.

(2) A person who is convicted of an offence referred to in section 28,29,30,31,32 or 33 shall be liable to a fine not exceeding two hundred thousand Emalangeni or imprisonment not exceeding twenty years or to both.

Additional penalty

36. (1) Where a person is convicted of an offence under this Part, the court shall in addition to any penalty it may impose under section 35 order the person convicted to pay to the rightful owner the amount or value, as determined by the court, of any advantage actually received by that person.

(2) Where after reasonable inquiry, the rightful owner cannot be ascertained or traced or is implicated in the commission of that particular offence under this Part, the court shall order that the amount or value of that advantage be forfeited to the Government.

(3) In addition to the fine a court may impose in terms of section 35, the court may impose a fine equal to five times the value of the advantage involved in the offence.

Dismissal on conviction

31. The conviction of a judicial officer or other public officer for an offence under this Part, shall, subject to any other law, warrant the dismissal from office of that judicial or public officer.

Endorsement of register

38. (1) A court convicting a person of an offence contemplated in section 22, may, in addition to imposing any sentence contemplated in section 35, issue an order that -

(a) the particulars of the convicted person;

(b) the conviction and sentence; and

(2) Where the person convicted is an enterprise, the court may also issue an order that-

19 (a) the particulars of that enterprise;

(b) the particulars of any other partner, manager, director or other person,

(i) who wholly or partly exercises or may exercise control over that enterprise; and (ii) who was involved in the

offence concerned; or

(iii) who knows or ought reasonably to have known or suspected that the enterprise ' committed the offence concerned; and

be endorsed on the register.

(3) The court may also issue an order contemplated in subsection (1) in respect of any enterprise owned or controlled by the person so convicted, or the particulars of any partner, manager, director or other person who wholly or partly exercises or may exercise control over the enterprise, and which -

(a) enterprise, partner, manager, director or other person; or,

(b) partner, manager, director or other person knew or bought reasonably to have known or suspected that the enterprise,

was involved in the offence concerned.

(4) Whenever the register is endorsed as contemplated in subsections (1), (2) or (3), the endorsement applies, unless the court directs otherwise, to every enterprise to be established in the future, and which enterprise will be wholly or partly controlled or owned by the person or enterprise so convicted or endorsed, and the Registrar shall, in respect of every such enterprise, endorse the register accordingly.

(5) Where a court has issued an order in terms of subsections(l)(2)and the Clerk of that court shall forthwith forward the court order to the Registrar and the Registrar shall forthwith endorse the register accordingly.

(6) Where the Registrar has endorsed the register in terms of subsection (5), in addition to any other legal action, the Accountant-General may issue an instruction terminating any agreement with the person or enterprise referred to in subsection (1) or (2).

(7) In considering the termination of an agreement, the Accountant-General shall take into account, among other things, the following factors, namely -

(a) the extent and duration of the agreement concerned;

(b) whether he is likely to conclude a similar agreement with another person or enterprise within a specific time frame;

(d) the urgency of the services to be delivered or supplied in terms of the agreement;

(e) whether extreme costs will follow that termination; and

(f) any other factor which, in the opinion of the Accountant General may impact on the termination of the agreement.

(8) Where the agreement involves any purchasing authority or a Government Department, the restriction may only be imposed after consultation with the purchasing authority or Government Department concerned.

(9) The Accountant-General shall determine the period (which period may not be less than five years or more than ten years) for which the particulars of the convicted person or the enterprise referred to in subsections (1), (2), (3) or (4) shall remain in the register and during that period no offer in respect of any agreement from a person or enterprise referred to in those subsections may be considered by the Accountant-General. 20 (10) During the period determined in subsection (9), the Accountant-General, the purchasing authority or any Government Department shall -

(a) ignore any offer tendered by a person or enterprise referred to in subsection (1), (2), (3) or (4); or

(b) disqualify any person or enterprise referred to subsection (1), (2), (3) or (4), from making any offer or obtaining any agreement relating to the procurement of a specific supply or service.

(11) A restriction imposed in terms of subsection (6) only comes into effect after any appeal against the conviction or sentence or both has been finalized by the court.

(12) Where the Supreme Court sets aside, varies or amends the order referred to in subsection (1), (2) or (3) the Accountant- General shall, where necessary, amend the restrictions imposed under subsection (6) accordingly.

(13) Where the Accountant-Genera] has terminated an agreement in terms of subsection (6), the Accountant-General may, in addition to any other legal remedy, recover from the person or enterprise any damages -

(a) incurred or sustained by the Government as a result of the tender process or the conclusion of the agreement; or

(b) which the Government may suffer by having to make less favourable arrangements thereafter.

(14) The Accountant General -

(a) may at any time vary or rescind any restriction imposed under subsection (6), (7), (8) or (9); and

(b) shall, when the period determined in terms of subsection (9) expires, remove the particulars of the person or enterprise concerned, from the register.

(15) Where the Accountant-General imposes a restriction under subsection (6), (7), (8) or (9), or amends or rescinds that restriction, the Accountant-General shall, within 14 days, in writing notify -

(a) the person whose particulars have been so endorsed;

(b) any purchasing authority on which it may decide; and

of any resolution or decision relative to that restriction or the amendment or rescission, and request those authorities and departments to take similar steps.

(16) Where, in subsequent agreement or tender process involving the Government, a person -

(a) whose particulars, conviction and sentence have been endorsed on the register as contemplated in this section; and,

(b) who has been notified as contemplated in subsection (15) (a),

fails to disclose that endorsement, conviction or sentence, as the case may be, commits an offence and is liable on conviction to a fine not exceeding fifty thousand Emalangeni or improvement for a period not exceeding five years or to both.

(17) For the purposes of this section -

(a) "agreement" includes an agreement to procure and supply services, to arrange the hiring or letting of anything or the acquisition or granting of any right for or on behalf of the Government;

(b) "enterprise" includes any individual, partnership, corporation, association, or other juristic person or legal entity, and any union or group of individuals associated in fact, although not a juristic person or legal entity;

21 (d) "register" means the register established in terms of section 43. Attempting, inciting etc, commission of offences

39. A person who, under this Part -

(a) attempts to commit an offence;

(b) conspires with another person to commit an offence;

commits an offence and is liable on conviction to a like penalty as if that person has been convicted of that offence.

Briber and bribed to be guilty even if purpose not achieved

40. (1) Where, in any proceedings for an offence under any section of this Part, it is proved that the accused accepted any advantage, believing or suspecting or having grounds to believe u" suspect that the advantage was given as an inducement to or a reward for or otherwise on account of the accused doing or forbearing to do or having done or forborne to do, any act referred to in that section, it shall not be a defence that -

(a) the accused did not actually have the power, right or opportunity to do or forebear to do any such act;

(b) the accused accepted the advantage without intending to do or forbear to do any such act; or

(2) Where, in any proceedings for an offence under any section of this Part, it is proved that the accused offered any advantage to another person as an inducement to or a reward for or otherwise on account of that other person doing or forbearing to do, or having done or forborne to do any act referred to in that section, believing or suspecting or having reason to believe or suspect that such other person had the power, right or opportunity to do or forbear to do any such act, it shall not be a defence that such other person had no such power, right or opportunity.

Money laundering

41. (1) A person who knows or ought reasonably to have known that property is or forms part of the proceeds of unlawful activities and -

(a) enters into any agreement or transaction with anyone in connection with that property, whether that agreement, arrangement or transaction is legally enforceable or not; or,

(b) performs any act in connection with that property, whether it is performed independently or in concert with any other person,

commits an offence and shall be liable on conviction to a fine not exceeding one hundred thousand Emalangeni or to a term of imprisonment not exceeding ten years or to both.

(2) For an offence to be committed under this section, the agreement, performance, transaction or act in connection with the property must have or be likely to have an effect of -

(a) concealing or disguising the nature, source, location, disposition or movement of that property or the ownership of that property or any interest which anyone may have in respect of that property; or,

(b) enabling or assisting any person who has committed or commits an offence whether in the country or elsewhere -

(i) to avoid prosecution; or

(ii) to remove or diminish any property acquired directly as a result of a commission of an offence.

22 General offence of corruption

42 (1) Subject to the provisions of subsection (2), a person who directly or indirectly -

(a) demands or accepts or agrees or offers to accept any advantage whether for the benefit of that person or of another person; or,

(b) gives or agrees or offers to give any other person any advantage whether for the benefit of that other person or of another person,

is guilty of the offence of corruption and liable on conviction to the penalty prescribed under section 35(1).

(2) For an offence to be committed under subsection (1), the act complained of must cause that person or influence another person to act in a manner -

(a) that amounts to the

(i) illegal, dishonest, unauthorized, incomplete or biased; or,

(ii) misuse or selling of information or material acquired in the course of the,

exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual, fiduciary or any other legal obligation;

(b) that amounts to

(i) the abuse of a position of authority; (ii) a breach of trust; or

(iii) the violation of a legal duty or a set of rules; (c) designed to achieve an

unjustified result; or

(d) that amounts to any other unauthorized or improper inducement to do or not to do anything.

PART IV REGISTER FOR TENDER DEFAULTERS

Establishment of register

43. Within six months after the commencement of this Part, the Minister responsible for finance shall establish a register, to be known as the Register for Tender Defaulters, within the office of the Accountant General.

Designation of Registrar

44. The Minister responsible for finance shall designate as Registrar a fit and proper person, with due regard to the experience, conscientiousness and integrity of that person.

Powers, duties and functions of Registrar

45. (1) The Registrar shall, subject to the provisions of section 38 and this Part, exercise and perform the powers, duties and functions under this Act subject to the control and directions of the Accountant General.

(2) The Registrar shall -

(a) maintain the Register;

(b) manage the office of the Registrar; and

23 (c) carry out the duties and perform the functions assigned under section 38, this Part or by the Accountant-General or any other law.

Access to Register

46. The Register is open to the public as may be prescribed.

Regulations pertaining to Register

47. (1) The Minister responsible for finance may, in consultation with the Minister, make regulations relating to -

(a) the maintenance and management of the Register, the particulars to be entered in such Register, the manner which such particulars shall be recorded and the period for which the information in the Register shall be retained;

(b) access to information contained in the Register;

(d) any other matter which the Minister may consider necessary to prescribe in order to achieve the objects of section 38 and this Part.

(2) Regulations made in terms of subsection (1) may, in respect of any contravention or failure to comply, prescribe as a penalty a fine not exceeding two thousand Emalangeni or imprisonment for a period not exceeding 12 months.

PART V PRESUMPTIONS

Presumptions

48 (1) Subject to the provisions of subsection (2), where a person is charged with an offence under section 21, 22, 23, 24, 25, 26, 28, 30 or 33, proof that that person or another at the instance of that person -

(a) accepted or agreed or offered to accept any advantage from; or,

(b) gave or agreed or offered to give any advantage to, any other person who -

(i) holds or seeks to obtain a contract, License, permit, employment or anything whatsoever from a public body, private organization, corporate body or other organization orinstitution in which the person charged was serving as an official;

(ii) is concerned, or is likely to be concerned, in any proceedings or business transacted, pending or likely to be transacted before or by the person charged or public body, private organization, corporate body or other organization or institution in which the person charged was serving as an official; or

(iii) acts on behalf of a person contemplated in paragraph (i) or (ii),

and, in the absence of evidence to the contrary which raises reasonable doubt, is sufficient evidence that the person charged demanded or accepted or agreed or offered to accept that advantage from that person or gave or agreed or offered to give that advantage to that person.

(2) For an offence to be committed under subsection (1), the act complained of must -

(a) amount to the -

(i) illegal, dishonest, unauthorized, incomplete or biased; or

(ii) misuse or selling of information or material acquired in the course of the,

24 exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual, fiduciary or any other legal obligation; or,

(b) amount to -

(i) the abuse of a position of authority;

(ii) a breach of trust; or, (iii) the violation of a legal duty or a set of rules; or,

(d) amount to any other unauthorized or improper inducement to do or not to do anything; and,

(e) show that the Crown despite having taken reasonable steps was unable with reasonable certainty to link the -

(i) demand or acceptance of or agreement or offer to accept; or (ii) giving of or agreement or offer to give, the

advantage to any lawful authority or excuse on the part of the person charged.

(3) Whenever a public officer whose duties include the detention, investigation, prosecution or punishment of offenders, is charged with an offence involving the acceptance of an advantage, arising from-

(a) the arrest, detention, investigation or prosecution of any person for an alleged offence;

(b) the omission to arrest, detain or prosecute any person for an alleged offence; or

it is not necessary to prove that the accused person believed that an offence contemplated in paragraphs (a), (b) and (c) or any other offence had been committed.

PART VI MISCELLANEOUS MATTERS

Duty to report corrupt transactions

49. (1) A person who holds a position of authority and who knows or ought reasonably to have known or suspected that another person has committed-

(a) an offence under Part III; or

(b) the offence of theft, fraud, extortion, forgery or uttering a forged document involving an amount of £10,000-00 or more,

and fails to report that knowledge or suspicion or cause that knowledge or suspicion to be reported to any police officer or investigating officer of the Anti-Corruption Commission, commits an offence and shall, on conviction, be liable to a fine not exceeding five thousand Emalangeni or imprisonment not exceeding two years or to both.

(2) For purposes of subsection (1) the following persons hold a position of authority, namely -

(a) a principal secretary in charge of any Government Ministry, the head of a department or other establishment of Government, or equivalent officer, or a Regional Administrator, or Regional secretary;

(b) in the case of a municipality, the chief executive officer or town clerk as appointed in terms of any relevant law;

(d) any head, rector or principal of any school or college;

(e) the manager, secretary or director of any company;

25 (f) the executive manager of any bank or other financial institution;

(g) any partner in a partnership;

(h) any person who has been appointed as head or chief executive officer of any agency, authority, board, commission, committee, corporation, council, department, entity, financial institution, foundation, fund, institute, service, or any other institution or organization, whether established by legislation, contract or any other legal means;

(i) any other person who is responsible for the overall management and control of the business of an employer; or

(j) any person contemplated in paragraphs (a) to (i), who has been appointed in an acting or temporary capacity.

Application for restraining order an d forfeiture order

50. (1) Where a person, who is the subject of an investigation under this Act or is about to be charged with an offence under Part III, the Director of Public Prosecutions may apply to the court for a restraining order under section 11 of the Serious Offences (Confiscation of Proceeds) Act, 2001, and accordingly the provisions of that Act shall have effect in respect of the application.

(2) Where a person has been convicted of any offence under Part III of this Act, the Director of Public Prosecutions may apply to court for a forfeiture order under section 3 of the Serious Offences (Confiscation of Proceeds) Act, 2001, and accordingly, the provisions of that Act shall have effect in respect of the application.

Surrender of passport

51. (1) A magistrate's court may, on application by the Commissioner, order a person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by that person under this Act to surrender to the Commissioner any passport in possession of that person.

(2) Subject to section 52, a passport surrendered to the Commissioner may be detained for one month or for such further period as the court may determine, if on application by the Commissioner, the magistrate is satisfied that the investigation could not reasonably have been completed before the expiration of the one month or such further period.

(3) An application under subsection (2) shall not be heard by a magistrate unless reasonable notice of the application has been given by the Commissioner to the person who surrendered the passport.

(4) All proceedings before a magistrate under this section shall be conducted in Chambers.

Return of passport

52. (1) A person who has surrendered a passport under section 51 (1) may at any time apply to the magistrate's court for its return and the application shall contain a statement of the grounds on which it is made.

(2) Notice of an application under subsection (1) shall be given by the applicant to the Commissioner.

(3) The magistrate may -

(a) grant the application either without conditions or subject to such conditions as to the further surrender of the passport and the appearance of the applicant at any place and time as the magistrate may specify; or

(b) refuse the application.

(4) Without prejudice to subsection (3), the magistrate may, before granting an application under subsection (1), register that -

(a) the applicant enters into a recognizance, with such sureties, if any, as the magistrate may require; or

(b) the applicant deposits such sum of money and enters into such recognizance as the magistrate may require.

(5) Where an application is granted under subsection (3) subject to conditions or is refused, the applicant aggrieved may within fourteen days appeal to the High Court against the conditions or refusal, stating the grounds for the appeal, but the lodging of that appeal shall not of itself affect the operation of any such conditions.

26 (6) Where after considering the grounds of appeal, the High Court is satisfied that the detention of the passport shall, having regard to all the circumstances including the interests of the investigation, cause unreasonable hardship to the applicant, order that the passport be returned to the applicant either without conditions or upon such conditions as to the further surrender of the passport and the appearance of the applicant at such time and place as may be specified in the order.

(7) Proceedings under this section shall be conducted in Chambers. Bail from persons about to leave Swaziland

53. (1) Where, in the course of an investigation of an offence alleged or suspected to have been committed by any person under this Act, it appears to the Commissioner that that person is about to leave Swaziland, the Commissioner may apply to the court for a warrant for the apprehension of that person and the production before the court of that person.

(2) Where on any application under subsection (1) the court is satisfied upon oath that there is reasonable cause to believe that the person whose apprehension is being sought is about to leave Swaziland and that in all the circumstances, the investigation could not reasonably have been completed before the date of the application, the court may issue a warrant to apprehend that person and cause the person to be brought before the court so soon after apprehension as is practicable to be dealt with according to subsection (3).

(3) On the production before the court of any person apprehended in execution of a warrant issued under subsection (2), the court shall, unless the person apprehended can satisfy the court that he is not about to leave Swaziland and that he has no intention of leaving Swaziland offer to admit the person to bail, on that person giving in cash -

(a) a deposit of E500 if the amount or the value of the advantage in respect of which the offence is committed is E2.000.00; or

(b) a deposit equivalent to one half the amount of the advantage if the amount or value of the advantage in respect of which the offence is committed is more than £2,000.00.

(4) Where the amount or value of the advantage involved is E2,000.00 or more the court shall not admit the person to bail on recognizance.

(5) In deciding the day on which a person admitted to bail under sub-section (3) is to appear, the court shall have regard to the time reasonably necessary for completion of the investigation of the offence alleged or suspected to have been committed by that person and to any special hardship to that person likely to result from being on bail.

(6) All proceedings under this section shall be conducted in Chambers. Evidence of pecuniary resources or property

54. (1) In any proceedings against a person for an offence under Part III the fact that -

(a) the accused who at the date of or at any time after the date of the alleged offence, is in possession of pecuniary resources or property disproportionate to the known sources of income of that person for which that person cannot satisfactorily account; or

(b) the accused had at the date of or at any time after the date of the alleged offence, obtained an accretion to the pecuniary resources or property of that accused for which the accused cannot satisfactorily account,

may be proved and may be taken by the court -

(i) as corroborating the evidence of any witness in those proceedings that the accused demanded or accepted or solicited any advantage; and

(ii) as showing that any advantage was demanded or accepted or solicited as an inducement or reward.

(2) For the purpose of subsection (1), a person accused of an offence under Part III shall be presumed to be in possession of pecuniary resources or property or to have obtained an accretion to the resources or property where the resources or property are held or the accretion is obtained by another person whom having regard to the relationship to the accused or to any other circumstances, there is reason to believe that other person held those resources or property or obtained that accretion in trust for or otherwise on behalf of the accused or as a gift from the accused.

27 Certificates as to official emoluments, etc

55. In any proceedings against a public officer for an offence under this Act, a certificate purporting to-

(a) certify -

(i) the rate of, and the total amount of, official emoluments and allowances of the public officer;

(ii) that the public officer was or was not serving at any specified time or any specified period as a public officer; or

(iii) that the public officer held or did not hold any specified office; and

(b) be signed by the authorized or appropriate officer of the relevant public or private body,

shall be admitted in evidence in those proceedings by the court on production without further proof.

Protection of informers.

56. (1) In any trial in respect of an offence under Part III of this Act a witness shall not be obliged to disclose the name or address of any informer or state any matter which might lead to the discovery of that informer.

(2) Where in any document which is in evidence or liable to inspection in any civil or criminal proceedings under this Act contains any entry or record in which an informer is named or described or which might lead to the discovery of that informer, the court shall cause that entry or record to be concealed from view or to be obliterated in such a manner as in the opinion of the court may not disclose the identity of the informer.

(3) Where the court is of the opinion that an informer wilfully made to the Commission a material statement which that informer knew or believed to be false or did not believe to be true, or that justice cannot be fully done between the parties without the discovery of the informer, the court may require full disclosure of the identity of the informer.

False reports to the Commission

57. Any person who, during the course of an investigation into an offence alleged or suspected to have been committed under this Act, knowingly -

(a) makes or causes to be made a false report to the Commission of the commission of an offence;

(b) misleads the Commission or any investigating officer,

commits an offence and shall, on conviction, be liable to a fine not exceeding two thousand Emalangeni or imprisonment not exceeding one year or to both.

Regulations

58. The Minister, in consultation with the Commissioner, may make regulations in respect of any matter necessary to be prescribed to give effect to this Act.

Repeal of the Prevention of Corruption Order, 1993

59. The Prevention of Corruption Order No. 19 of 1993 is repealed.

Transitional provisions

60. (1) All acts or actions done under the repealed Prevention of Corruption Order, 1993 shall only be lawful and valid up to the date of the repeal.

(2) All criminal proceedings which immediately prior to the commencement of this Act were instituted in terms of the Prevention of Corruption Order, No. 19 of 1993, and which proceedings have not been concluded before the commencement of this Act, shall be continued and concluded, in all respects, as if that Order has not been repealed.

28 (3) An investigation or prosecution or other legal proceedings, in respect of conduct which would have constituted an offence under the Prevention of Corruption Order, 1993 and which occurred after the commencement of that Order but before the commencement of this Act, may be concluded, instituted and continued as if that Order has not been repealed.

(4) Notwithstanding the repeal or otherwise of any provision of any law by this Act, that provision shall, for the purpose of the disposal of any investigation, prosecution or any criminal or legal proceedings contemplated in subsection (2) or (3), remain in force as if that provision had not been repealed or done otherwise.

SCHEDULE (Under Section 30)

1. Senator

2. Member of Parliament

3. Member of Bucopho

4. Regional Administrator

5. King's (advisory) Counsellor

6. Chief and Chief's Counsellor

7. Municipal Councillor

8. IndvunaYeNkhundla

29 THE INSURANCE ACT Commentary

This Act is basically a de-monopolisation of the Swaziland Royal Insurance Company. It makes provision for the regulation and supervision of insurance companies and their intermediaries. The Act requires every insurance business being carried on in Swaziland to be registered. In order to qualify for registration the company must first of all be a public company with a paid up share capital of not less than E2 000 000 (Two Million Emalangeni). However a company applying for registration as an insurer and whose only business will be the issuing of assistance policy contracts shall have a share capital of not less than E400 000 (four hundred thousand Emalangeni).

According to the Act at least 25% of the directors of the company applying for registration must be Swazi citizens. It is prohibited for an insurer to enter into an agreement with another person the terms of which allow that other person to operate as an insurer using the insurer’s License.

Section 11 of the Act places a limitation on the issue of types of shares and the rights attaching thereto. It says that an insurer may issue only ordinary shares and may not issue any non- voting shares; all insurers’ issued shares shall bear the same rights and obligations emanating from whatever source or action; lastly an insurer shall not convert its issued shares to another class of shares, issue any debentures, preference shares or reduce its share capital.

If an insurer fails to commence business within a reasonable period after registration or if he has ceased to carry on any particular class of insurance business, the registrar may cancel the registration of that insurer.

According to section 14 of the Act every insurance brokerage business has to be licensed and every insurance agent has to submit his name in writing to the registrar and the registrar must give his approval.

A person desirous of carrying the business of an insurance broker has to apply for a License to conduct such a business. The registrar may either grant or refuse to grant the License depending on whether he considers it to be in the public interest. This he does by considering whether the directors of the business have sufficient knowledge and skill to operate the business, judging from their curriculum vitas; whether the name under which the applicant has requested to be licensed is identical to the name of a person already licensed, contains the word ‘royal’, ‘king’, ‘government’, ‘national’ or is likely to mislead the public; or whether any senior official of the company has been convicted of any crime or declared insolvent.

The Act goes on to establish the office of the Registrar of Insurance and Retirement funds and lists the functions and duties of the registrar. The Registrar has to submit a report of the activities of his office within 3 months after the expiry of the financial year end of its office.

Section 26 specifically states that the Minister, Registrar or any member of their staff shall not divulge any non-public information obtained in the performance of their duties to any person unless authorised by the Act, by court order, with consent from the person to whom the information pertains or unless it is necessary to enforce the provisions of this Act in a court of law.

Section 29 of the Act establishes the Insurance and Retirement funds Board and section 30 lays down the constitution of the board and section 32 lists its functions.

Part VI of the Act deals with financial arrangements pertaining to the office of the Registrar. It establishes a fund called the Registrar’s Levies Account. Here the Registrar is empowered to maintain a banking account in the name of the office of the Registrar for the revenue of the levies account.

30 Also established under this part is the Registrars Guarantee Account which empowers the Registrar to maintain a banking account for the revenues of the Guarantee account, as well as the Insurance and Retirement Benefit Trust Fund.

The Act also protects policy holders, for example section 49 prohibits against inducing a policy holder or a prospective policy holder in any way to enter into a contract of insurance and to make any alterations or additions to or cancel a policy.

According to part IX of the Act any agreement between two or more insurers which will result in the transfer of all or part of the business from one insurer to another shall be of no legal force unless the Registrar has approved the agreement and his decision has been made an order of court.

The Act then goes on to list statutory requirements relating to intermediaries and the procedure for applying for judicial management or winding up of an insurer.

The last section of the Act repeals the Control of Insurance Order of 1973.

The Insurance Act, 2005 (Act No.7 of 2005)

An Act to make provision for the regulation and supervision of insurance companies and their intermediaries and for matters incidental thereto. ENACTED by the King and the Parliament of Swaziland. ARRANGEMENT OF SECTIONS PART I PRELIMINARY 1. Short title and commencement 2. Interpretation PART II TRANSITIONAL PROVISIONS AND REGISTRATION OF INSURERS 3. Prohibition of unregistered insurers 4. Transitional measures concerning current insurance business 5. Contracts with foreign insurers Prohibited - Exemption conditions 6. Registration of insurers 7 Qualifying requirements for registration as an insurer 8. Principal office and principal representative in Swaziland 9. Prohibition of certain actions by insurers and use of certain words 10. Change of name 11. Limitation on the issue of types of shares and the rights attaching to shares 12. Limitation on the ownership of shares 13. Cancellation of the registration of an insurer PART HI TRANSITIONAL PROVISIONS AND REGISTRATION OF INTERMEDIARIES 14. Unlicensed insurance brokers and insurance agents prohibited 15. Application for License to carry on the business of an insurance broker 16. Considerations pertaining to the licensing of insurance brokers 17. Qualifying requirements for registration as a broker 18. De-registration of a broker

31 19. Registration and operation of insurance agents PART IV REGISTRAR OF INSURANCE AND RETIREMENT FUNDS 20. Registrar of Insurance and Retirement Funds 21. Persons disqualified from being appointed as Registrar 22. Functions of the Registrar 23. Delegation of the powers and assignment of the duties of the Registrar 24. The Minister's authority to remove the Registrar from office 25. Registrar's enforcement authority 26. Confidentiality of non public information 27. Registrar's Annual Report to the Minister 28. Special provisions covering the Registrar's office and the powers of the Registrar PARTY THE INSURANCE AND RETIREMENT FUNDS BOARD 29. Establishment of Insurance and Retirement Funds Board 30. Constitution of the Board 31. Persons disqualified from being appointed to the Board 32. Functions of the Board 3 3. Term of office of Board members and filling of vacancies 34. Meetings and decisions of the Board 35. Remuneration of members of the Board 36. Removal of members of the Board

PART VI

FINANCIAL ARRANGEMENTS PERTAINING TO THE OFFICE OF THE REGISTRAR 37. Registrar's Levies Account 38. Employment of Registrar's Levies Account 39. Budget of the Office of the Registrar 40. Accounting, Auditing and Reporting of Registrars Levies Account 41. Registrar's Guarantee Account 42. Employment of Registrar's Guarantee Account 43. Insurance and Retirement Benefit Trust Fund 44. Claims on the Insurance and Retirement Benefit Trust Fund

PROVISIONS RELATING TO ADMINISTRATION AND BUSINESS OF INSURERS AND INTERMEDIARIES PART VII INSURERS'OFFICERS 45. Registrar may direct the removal of certain officers 46. Registrar to be notified of certain appointments and terminations 47. Appointment, powers and duties of auditor 48. Appointment, powers and duties of valuator PART VIII CONDUCT OF INSURERS' BUSINESS AND RELATED PROVISIONS 49. Prohibition of inducements 50. Prohibition of coercion 51. Premiums paid in cash 32 52. Invalidity of certain provisions 53. Misrepresentation 54. Insurer's responsibility for action of agents PART IX AMALGAMATION OF BUSINESS 5 5. Registrar to approve any amalgamation of business between insurers 56. Obligation pertaining to application 57. Withholding of approval 58. Valid approval 59. Costs of application 60. Registrar to approve acquisition of interest in insurer PARTX STATUTORY OBLIGATIONS PERTAINING TO INTERMEDIARIES 61. Rules for operation of brokers 62. Examination of brokers 63. Broker's responsibility for premiums 64. Broker's responsibility for actions of agents PART XI JUDICIAL INTERVENTION AND WINDING UP 65. Application for judicial management or winding up 66. Judicial management of an insurer 67. Winding up of an insurer PARTX STATUTORY LIMITATIONS 68. Limitations of business 69. Policy suspended until first premium paid 70. Remuneration of intermediaries 71. Undesirable business practice PART XII POLICYHOLDER PROTECTION 72. Registrar's authority to propose rules for policy contents 73. Policy to be actuarially sound LONG TERM INSURERS PART XTV FINANCIAL MATTERS AND RELATED ISSUES 74. Assets 75. Investment of long term insurance assets 76. Prohibition on use of assets 77. Valuation of liabilities for long term insurance 7 8. Maintenance of financially sound condition 79. Failure to maintain financially sound condition 80. Returns to Registrar 81. Failure to submit returns SHORT TERM INSURERS PARTXV FINANCIAL MATTERS AND RELATED ISSUES 82. Assets 83. Investment of short term insurance assets 84. Prohibition on use of assets 33 85. Valuation of liabilities for short term insurance 86. Maintenance of financially sound condition 87. Failure to maintain financially sound condition 88. Returns to Registrar 89. Failure to submit returns PART XVI CONSIDERATION AND ADJUDICATION OF COMPLAINTS 90. Submission and consideration of complaints 91. Establishment of Office of Insurance Adjudicator 92. Appointment of Adjudicator 93. Main object of Adjudicator 94. Disposal of complaints 95. Opportunity to comment 96. Parties to complaint 97. Jurisdiction and prescription 98. Time limit for lodging of complaints 99. Procedure for conducting investigation 100. Legal representation 101. Record of proceeding 102. Statement by Adjudicator regarding determination 103. Interest on amount awarded 104. Enforceability of determination 105. Access to court 106. Powers of Adjudicator 107. Expenses of the Adjudicator 108. Remuneration and terms and conditions of employment of Adjudicator and employees 109. Report of Adjudicator 110. Offences and penalties 111. Limitation of liability 112. Liquidation of Office of Adjudicator PART XVII FINAL PROVISIONS 113. Days of grace and non-forfeiture provision 114. General penalty 115. Penalty for false representation

116. Decisions of the Registrar and the Insurance and Retirement funds Board may be made an order of the Court 117. Adherence to the provisions of this Act shall not constitute an offence 118. Power to make Regulations and issue directives 119. Repeal of Legislation PART I SHORT TITLE AND INTERPRETATION Short title and commencement

1. This Act may be cited as the Insurance Act, 2005, and shall come into force on a date to be published by the Minister in the Gazette.

Interpretation .

2. (l)In this Act, unless the context otherwise requires:

"actuary" means any fellow of a recognized institute, faculty, society or chapter of actuaries approved by the Minister; 34 "adjudicator" means the Insurance Adjudicator appointed in terms of Section 92 of this Act; "annuity" means a series of payments payable either monthly, quarterly, bi-annually or annually; "auditor" means an individual who is registered as an auditor in terms of the Accountants Act, 1985; "Board" means the Insurance and Retirement Funds Board established in terms of Section 29 of this Act;

"Chairman" in the context of any association of persons, means an individual who is at the head of the board of directors or governing body of the association;

"citizen" means "citizen of Swaziland" as defined in the Citizenship Act, 1992;

"class" in the context of insurance business, refers to those types of insurance business included in the definition of "long term insurance business" or "short term insurance business" in this Act;

"Companies Act" means the Companies Act, 1912;

"Company" means a person incorporated and registered in accordance with the provisions of the Companies Act; "complainant" means (a) a person who is, or who claims to be (i) the proposer of a policy; (ii) a beneficiary or former beneficiary under a policy; or (iii) a life assured under a policy; or (b) a person who has financial interest in a complaint; and includes a group of persons referred to in (a) (i), (ii) and (iii) or (b).

"complaint" means a complaint by a complainant relating to the interpretation and application of the terms and condition of a policy or the conduct of any person in relation to insurance business and alleging that:

(a) a decision of any person purportedly taken in terms of the policy terms and conditions was in excess of the powers of that insurer or person, or an improper exercise of its or his powers;

(b) the interest of the complainant has or will be prejudiced as a result of the decision, whether by act or omission;

(c) a dispute of fact or law pertaining to insurance business has arisen between any person and the complainant; or (d) the person has not fulfilled their duties in terms of the policy terms and conditions, but does not include a complaint which does not relate to any of the above specific list of complaints.

"Corporation" means the Swaziland Royal Insurance Corporation established by the Kings Order-In-Council 32 of 1973 or its successor company as registered in terms of Section 4 of this Act;

"court" means the High Court of Swaziland;

"death event" means the event of the life of a person having ended;

"director" means a person who is a member of the board of directors of a company or a member of the governing body of an organisation that is not a company;

"disability event" means the event of the functional ability of the mind or the body of a person becoming impaired; "domestic insurer" means an insurer registered in terms of this Act;

"financial year" in relation to any person means the 12 months, or such other period as approved by the Registrar, preceding a set day and month in each year as informed to and approved by the Registrar, on which that person's financial statements are drawn;

"foreign insurer" means an insurer other than a domestic insurer;

"friendly society" means an association of individuals with no share capital established for the purpose of rendering aid to its members or to their dependants and which does not at any time after the commencement of this Act:

35 (a) employ or remunerate any person for the purpose of inducing other persons to become members of such association or for collecting contributions or subscriptions from members; (b) pay a lump sum benefit including bonuses exceeding E10 000; or (c) pay an annuity inclusive of bonuses exceeding El 200 a year; "health event" means an event relating to the health of the mind or body of a person;

"insurance agent" means a person who is neither an insurance broker, nor an employee of an insurer, underwriter or insurance broker and who undertakes the selling or servicing of any kind of insurance business on behalf of such an insurance company underwriter or insurance broker;

"Insurance and retirement benefit trust fund" means the fund referred to in section 43 of this Act.

"insurance broker" means a person, other than an employee of an insurer, who is not an insurance agent, and who, on behalf of any other person, negotiates insurance business including reinsurance as his principal business;

"insurance business" means conducting any transaction involving any class of business defined in this Act and excludes: (a) the activities of a friendly society; (b) the activities of a medical scheme; (c) unemployment insurance business; (d) the activities of agricultural co-operatives; (e) the activities of a deposit taking institution; (f) the activities of a retirement annuity fund; and (g) any long term insurance policy exempted by this Act. "insurer" means a person registered under section 4 or section 6 of this Act;

"invested in the Kingdom of Swaziland" means an investment that is not reinvested in full or in part, outside of the borders of the Kingdom of Swaziland; "life annuity" means an annuity payable for the life time of a specified person; "Minister" means the Minister responsible for Finance;

"parent company" means in relation to a person another person who has a controlling interest in that person;

"policy" means a written contract for the purpose of effecting any class of insurance as defined in this Act;.

"policy benefit" means a lump sum or an annuity payable on a certain contingency;

"policy holder" means the contracting party entitled to be provided with the benefits stipulated in the policy contract;

"premium" means a lump sum payment, or a maximum of 12 instalments in lieu of that lump sum payment, or a periodical monthly payment intended to be paid for a specified period or the lifetime of a particular person in exchange for the undertaking to be paid a policy benefit;

"proportional reinsurance" means the reinsurance of a part of a liability where premiums are shared in the same proportion as losses between the reinsurer and the insurer; "public company" means a public company in terms of the Companies Act; "Registrar" means the Registrar of Insurance and Retirement Funds referred to in Section 20 of this Act; "regulation" means any regulation made under Section 118 of this Act; "reinsurance" means insurance by a reinsurer of a risk under a policy issued by an insurer;

"reinsurer" means a person whose sole business is the insurance of risks under a policy issued by an insurer; "risk" means a possibility that a particular event may occur during the period; "State" means the Government of the Kingdom of Swaziland; "subsidiary company" means an associated organisation in which a person has a controlling interest; "this Act" includes the regulations and any forms and circulars emanating from the regulations;

36 "valuator" means an actuary who has been entrusted with carrying out actuarial investigations of an insurer;

(2) In this Act, in relation to Long term insurers, and unless the context otherwise requires:

"assistance policy" means a life policy whereby the insurer undertakes in return for a premium to provide a lump sum payment not exceeding in total an amount prescribed by the Minister by regulation in respect of all policies of that class in the name of the insured, underwritten by the insurer on the death of the insured person;

"disability policy" means a contract whereby an insurer, in return for a premium, undertakes to provide the policyholder with specified benefits on the occurrence of a disability event.

"Exempt Policy" means any long term insurance policy contracted to prior to this Act and any long term insurance policy for which an exemption certificate has been issued in terms of this Act.

"insured" means a person to whose life or functional ability a policy relates;

"life business" means the business whereby, in return for a premium or promise of a premium, an insurer undertakes to:

(a) pay a specified lump sum benefit on the death of a particular person;

(b) pay an annuity either for a specified limited period or for the lifetime of a particular person; or

(c) pay a lump sum benefit if a particular person survives for a certain period or up to a particular age; and shall exclude the business of a retirement annuity fund; "long term insurance business" means any life business and shall include assistance policies; "long term insurer" means any person who carries on long term insurance business, "retirement annuity fund" means any fund:

(a) that is established solely for the purpose of providing annuities and lump sum benefits to its members or their dependants;

(b) that has not more than one third of the actuarially determined capital value of the annuity may be payable as a cash lump sum benefit to the member;

(d) wherein if a member dies before becoming entitled to an annuity and he does not leave any dependants or nominees, the benefit payable to his estate shall not exceed the amounts contributed by him plus interest;

(e) wherein if a member dies and leaves dependants or nominees the benefits payable shall be an annuity payable for the duration of the life of the dependant:

Provided that, in the case of dependent children, the annuity shall be payable until the age of 21 years, and up to the age of 25 years if the dependant is still at school;

(f) wherein the benefit payable on discontinuance of membership shall be an annuity provided that if the member has not attained the age 55 years, the annuity will commence when the member reaches age 55 years;

(g) for which a copy of the rules of the scheme has to be submitted to and approved by the Registrar of Retirement Funds;

(h) wherein, on the winding up of the fund, the member's interest must be used to purchase an annuity from another insurer or the member's interest must be transferred to another retirement annuity fund for the member's benefit; and

(i) wherein any changes to the rules must be notified to and approved by the Registrar of Retirement Funds.

(3) In this Act, in relation to short term insurers, and unless the context otherwise requires:

37 "accident and health policy" means a contract in terms of which, in return for a premium, a person undertakes to provide policy benefits if a: (a) disability event; (b) health event; or (c) death event; contemplated in the contract as a risk occurs, provided that the term of the contract together with any renewal or extensions of the contract shall not exceed 12 months in aggregate;

"engineering policy" means a contract whereby an insurer in return for a premium promises to pay a policy benefit on the occurrence of an event specified as a risk in relation to:

(a) the possession, use or ownership of machinery or other equipment other than a motor vehicle in the carrying on of a business; (b) the construction of any structure or other works; (c) the installation of machinery or equipment; and shall include a reinsurance policy in respect of such a policy;

"guarantee policy" means the business whereby an insurer undertakes, in return for a premium to assume responsibility for payment of the debts of any person or to make good any obligations of that person in the event of the failure of that person to pay his debts or make good his obligations;

"liability policy" means a contract in terms of which a person, in return for a premium, undertakes to provide policy benefits if an event contemplated in the contract as a risk relating to the incurring of a liability occurs;

"miscellaneous policy" means a contract in terms of which a person, in return for a premium, undertakes to provide policy benefits if an event contemplated in the contract as a risk relating to any matter not otherwise defined in this Act occurs;

"motor policy" means the business whereby an insurer undertakes in return for a premium to provide policy benefits if an event contemplated in the contract as a risk relating to the use or ownership of a motor vehicle occurs;

"property policy" means a contract in terms of which a person, in return for a premium, undertakes to provide policy benefits if au event, contemplated in the contract as a risk and related to the use, ownership, loss or damage to movable or immovable property occurs;

"short term insurance business" means insurance business relating to an engineering policy, transportation policy, motor policy guarantee policy, liability policy, accident and health policy, property policy, workman's compensation business and miscellaneous policy;

"transportation policy" means a contract in terms of which a person, in return for a premium, undertakes to provide policy benefits if an event contemplated in the contract as a risk relating to the possession, use or ownership of a vessel, aircraft or other craft for the conveyance of goods by air, land or water, or to the storage, treatment or holding of goods so conveyed or to be so conveyed occurs;

"workman's compensation business" means the business of providing compensation where compensation is as defined in the Workman's Compensation Act, 1983. PART II TRANSITIONAL PROVISIONS AND REGISTRATION OF INSURERS

Prohibition of Unregistered Insurers

3. (1)After the expiry of a period of 12 months from the commencement of this Act no person shall carry on insurance business in the Kingdom of Swaziland unless he has been registered as an insurer in terms of section 4 or section 6 of this Act.

(2) No person shall issue a new policy or renew a policy in the period of 12 months from the commencement of this Act unless he has been registered as an insurer in terms of section 4 or section 6 of this Act or has been granted a temporary certificate of registration in terms of section 4 of this Act.

38 (3) For purposes of this section "carry on insurance business" includes:

(a) the receipt of proposals for or issuing of a policy of insurance, in respect of a person resident in Swaziland, by an insurer whether through an agent or broker; and

(b) the receipt of premiums in respect of a policy subsisting at the date of commencement of this Act;

but excludes:

(a) any obligations of a policyholder or insurer under a policy issued outside of Swaziland to a person resident outside Swaziland on the date of issue of that policy;

(b) reinsurance of risks carried by an insurer registered in terms of section 4 or section 6 of this Act; and

(c) any obligations by an insurer under a policy subsisting at the date of commencement of this Act or an exempted policy as defined in section 5 of this Act.

(4) Any insurance other than a life policy issued individually on the life of a person prior to the date of commencement of this Act, shall be assumed to have been terminated on its first renewal date after the commencement of this Act or 12 months after the commencement of this Act whichever is the earlier.'

Transitional Measures Concerning Current Insurance Business

4. (1) The Swaziland Royal Insurance Corporation established in terms of the Swaziland Royal Insurance Corporation Order, 1973 shall, for purposes of this Act, be regarded as being a registered insurer and shall, within a period of 12 months after the commencement of this Act, be registered as an insurer by the Registrar and be issued with a certificate of registration.

(2) The Swaziland Royal Insurance Corporation shall pay the required fees to the Office of the Registrar and shall fulfil the necessary obligations in terms of the regulations, but such action shall only be for the purposes of formality and to ensure the completeness of the Registrars records and these obligations shall have no bearing on the granting of a certificate of registration in terms of subsection 4 (1).

(3) A person other than the Swaziland Royal Insurance Corporation who:

(a) was carrying on insurance business immediately before the commencement of this Act, whether lawfully or unlawfully, and has within a period of 30 days of such commencement informed the Registrar of his intention to continue such business, shall, at the discretion of the Registrar be granted a temporary License which shall expire 12 months after the commencement of this Act;

(b) who was carrying on insurance business in Swaziland immediately before the commencement of this Act, whether lawfully or unlawfully, and has been granted a temporary License in terms of subsection 3 (a), shall apply for registration as an insurer in terms of section 6 of this Act within 60 days of being granted a temporary License; or

(c) who has not been granted a temporary License in terms of subsection (1) (a) may apply for registration as an insurer in terms of section 6 of this Act.

(4) A person, other than the Swaziland Royal Insurance Corporation, who was carrying on insurance business in Swaziland immediately before the commencement of this Act, whether lawfully or unlawfully, shall within 3 months of such commencement submit to the Registrar a scheme for the transfer of his business to a domestic who is either:

(a) a domestic insurer registered in terms of this Act; or

(b) a domestic insurer which is a subsidiary company of a foreign insurer incorporated in Swaziland and which has been registered in terms of this Act.

(5) The Registrar may grant any person an exemption from the prohibition of this section after

39 application by that person in the form prescribed by the Registrar, for long term Insurance Policies, and subject to such conditions as the Registrar may impose from time to time.

Contracts with Foreign Insurers Prohibited

5. (1) After the commencement of this Act, no person shall enter into a contract of insurance with any foreign insurer except as allowed for in terms of this Act.

(2) A person who contravenes the provisions of this section commits an offence and shall, on conviction, be liable to a fine not exceeding El00 000 or a term of imprisonment not exceeding 5 years.

Registration of Insurers

6. (1) A person wishing to conduct insurance business in Swaziland after the commencement of this Act and who has been registered in terms of the Companies Act shall apply for registration as an insurer in terms of regulation 1 of this Act.

(2) If the Registrar is satisfied that the person has complied with all the requirements of section 7, he may register that person as being authorised to carry on the class of business applied for and issue him with a certificate of registration.

(3) Notwithstanding the provisions of subsection (2), the Registrar may request an applicant to provide additional information in order to assist him to make a decision.

(4) The Registrar shall refuse to register a company as an insurer if the conditions of Section 7 or any other request that he may have made in terms of subsection (3) have not been fulfilled.

(5) The Registrar may refuse to register an applicant as an insurer if he considers this to be in the public's interest.

(6) The Registrar may attach such conditions to the registration of an insurer as he considers to be in the public's interest.

Qualifying Requirements for Registration as an Insurer

7. (1) Only a public company may apply for registration as an insurer.

(2) A company applying for registration as an insurer shall have a paid up share capital of not less than E2 000 000.

(3) Notwithstanding the provision of subsection (2), a company which applies for registration as an insurer and whose only business will be the issuing of assistance policy contracts shall have a share capital of not less than E 400 000:

Provided that, if at any time after its registration, such insurer wishes to issue policy contracts of another class of insurance, the shareholders shall register another insurer in terms of section 6 and then proceed / to amalgamate the two insurers in terms of section 55 of this Act.

(4) A company applying for registration as an insurer shall ensure that its shares conform to the provisions of section 11 of this Act.

(5) At least 25% of the issued shares of the company contemplated in subsection 7(1) shall be held by a person who:

(a) if he is a natural person, is a Citizen of Swaziland;

(b) if he is a juristic person, then;

(i) at least 51% of the issued voting share of that person is owned by a person who is a Citizen of Swaziland;

(ii) at least 51% of the interest in that person is owned by a person who is a Citizen of Swaziland; or

(iii) where the person is a retirement fund, at least 51% of its members must be Citizens of Swaziland.

(c) if an association of persons established for the mutual benefit of its members only, at least 80% of its members must be Citizens of Swaziland and the aforementioned members must have a claim to at least 51% of the association assets.

40 (6) At least 25% of the directors of the company contemplated in subsection 7(1) shall be Citizens of Swaziland.

(7) A person applying for registration shall provide proof, to the satisfaction of the Registrar that that person:

(a) is a public company and has the carrying on of insurance business as its main object;

(b) has the resources, financial, human and structural, to enable it to conduct the business; and

(c) will be able to comply with the requirements to this Act and any conditions attached by the Registrar to its registration.

Principal Office and Principal Representative in Swaziland

8. (1) Every insurer registered in terms of section 4 or section 6 of this Act shall maintain a principal office and appoint a principal representative in Swaziland and the address of the principal office and the name of the principal representative shall be notified to the Registrar in writing,

(2) Any change of address of the principal office or a change of principal representative shall be notified to the Registrar within 30 days in writing.

(3) Any notice emanating from legal proceedings may be served on the insurer by delivery to the principal office or if that office has ceased to exist by delivery to the Registrar.

Prohibition of Certain Actions by Insurers and use of Certain Words

9. (1) An insurer may not enter into an agreement with another person whereby that person is allowed to operate as an insurer by virtue of the insurers license.

(2) A person registered to carry on insurance business shall conduct its business through its own organisation only.

(3) After the expiry of a period of 12 months from the commencement of this Act no person may use the words "insure" or "assure" or any derivative of those words as part of the name of his business unless he is a registered insurer in terms of this Act.

(4) After the expiry of a period of 12 months from the commencement of this Act no person may use the words "insure" or "assure" as part of the name of his products or services which indicates that he carries on the business of an insurer unless the product or service is underwritten by an insurer and he is an authorised agent of the insurer.

Change of name

10. (1) An insurer wishing to change its registered name shall apply in writing to the Registrar in terms of the regulations.

(2) An insurer shall not refer to himself by a name other than the registered name. (3) An insurer shall not change his name except with the permission of the Registrar. Limitation on the Issue of Types of Shares and the Rights Attaching to Shares 11. (1) An insurer may issue only ordinary shares and may not issue any non voting shares.

(2) All an insurer's issued shares shall bear the same rights and obligations emanating from whatever source or action. (3) An insurer shall not : (a) convert its issued shares to another class of shares; (b) issue any debentures; (c) issue any preference shares; or (d) reduce its share capital.

(4) No person may enter into an agreement which will result in him agreeing not to exercise his rights attaching to the shares of an insurer that he owns.

41 Limitation on the Ownership of Shares

12. (1) No person may acquire shares in an insurer that will result in him or him and his associates acquiring more than 25% of the shares of an insurer.

(2) Notwithstanding the provisions of subsection (1), the Registrar may grant a person permission to acquire shares in an insurer which might result in that person or that person and his associates acquiring control of the insurer if the Registrar is satisfied that this is not against the public interest.

(3) The Registrar may apply such conditions to the ownership of shares as he considers to be in the public interest.

(4) The Registrar may, if he considers the acquisition of shares in an insurer not to be in the public interest, apply to the court for an order directing a person to divest himself of a certain number of shares in an insurer.

(5) The shares of an insurer shall be held and registered in the name of its owner and may not be held or registered in the name of any other person except if the owner is deceased, under liquidation, under curatorship, under guardianship, or under execution.

Cancellation of the Registration of an Insurer

13. (1) The Registrar may, cancel the registration of an insurer to carry on one or more class of insurance business:

(a) if the insurer has failed to commence carrying on that business within a reasonable period after registration; or

(b) if the Registrar is satisfied that the insurer has ceased to carry on that class of insurance business.

(2) The Registrar may cancel the registration of an insurer to carry on one or more classes of insurance business if as a result of an investigation by him, he has found cause to do so provided that no cancellation shall be carried out until the class or classes of business has been wound up in terms of section 67 of this Act.

(3) The Registrar may cancel the registration of an insurer to carry on one or more classes of insurance business at the insurer's request provided that: (a) the insurer shall submit a scheme to the Registrar setting out how he intends to address the expectations of current policyholders;

(b) the Registrar is satisfied that current policyholders will not be prejudiced by such cancellation; and

(4) A court may order the cancellation of an insurer's registration to carry on one or more classes of insurance business if the court considers this to be in the public interest:

Provided that no such cancellation shall be effected until the class or classes of business has been wound up in terms of section 67 of this Act. PART III TRANSITIONAL PROVISIONS AND REGISTRATIONS OF INTERMEDIARIES

Unlicensed Insurance Brokers and Insurance Agents Prohibited 14. (1) After the expiry of a period of 12 months after the commencement of this Act no person may carry on the business of an insurance broker unless he has been licensed in terms of this Act.

(2) After the expiry of a period of 12 months after the commencement of this Act, no person may operate as an insurance agent unless that person has submitted his name in writing to the Registrar and the Registrar has given his approval in writing.

Application for License to carry on the Business of an Insurance Broker

42 15. (1) Any person wishing to carry on the business of an insurance broker after the expiry of a period of 12 months from the commencement of this Act must apply for a License to conduct such business in terms of the regulations.

(2) If the Registrar satisfied that the person has complied with all the requirements of the regulations and any other requirement imposed by this Act, and that the person has complied to the Registrars satisfaction with any other request that the Registrar has made, he shall register that person as being authorised to carry on the business of an insurance broker and issue him with a License of registration.

(3) Notwithstanding the provision of subsection (2), the Registrar may refuse to grant a License to an applicant if he considers this to be in the public interest provided that the Registrar shall, in writing, inform the broker of the reasons for his refusal.

(4) The Registrar may impose such conditions upon a license issued under this section as he deems appropriate.

Considerations Pertaining to the Licensing of Brokers

16. Before issuing a License to carry on the business of an insurance broker, the Registrar shall ensure that the granting of the License will not be against the public interest by considering whether:

(a) the directors of the business have sufficient knowledge and skill to operate the business as demonstrated by the curriculum vitae of each director required to be submitted in terms of the regulations;

(b) the name under which the applicant has requested to be licensed is:

(i) identical or a close resemblance to the name of a person already licensed under this Act;

(ii) a name containing the words "Royal" or "King" or any other word suggesting Royal patronage or support, unless the written consent of the King has been obtained;

(iii) a name containing the word "Government" or "National" or any other word suggesting Government patronage; or (iv) otherwise likely to mislead the public. (c) any senior manager or director has been: (i) convicted of any crime or found liable for any offence involving dishonesty or fraud;

(ii) declared insolvent in Swaziland or any other country, unless later rehabilitated by an order of a court; or,

(iii) a director, senior manager or controller of any financial institution that has been wound-up in Swaziland or any other country; or,

(d) The broker has not entered into an agreement relating to the preferential offer of insurance business with any person conducting an insurance business such as to impair the impartiality of the applicant in placing insurance business.

Qualifying Requirements for Registration as a Broker

17. (1) After the expiry of a period of 12 months from the commencement of this Act any person who was lawfully carrying on the business of an insurance broker at the commencement of this Act may continue his operations provided that he has applied for and is granted a License in terms of section 15.

(2) Any person who applies for registration as a broker and who commenced operations after the commencement of this Act shall:

(a) if it is not a public company, be wholly owned by one or more citizens of Swaziland; or

(b) if it is a public company at least 51 % of the interest in the company is owned by one or more citizens of Swaziland or a person registered hi Swaziland where:

(i) if the person is a public company then at least 51% of the interest in that person is owned by citizens of Swaziland; or, 43 (ii) if the person is any other business or organisation, citizens of Swaziland have a claim to at least 80% of the person's assets.

(3) After the expiry of a period of 12 months after the commencement of this Act, a person who has acquired an interest in an Insurance Broker which has resulted in him or him and his associates holding more than 25% of all the shares or interest of that company shall notify the Registrar of his acquisition and such acquisition shall be of no force until the Registrar has approved his acquisition in writing.

(4) The Registrar may attach any condition that he deems to be in the public interest to any acquisition referred to in subsection (3).

(5) The Registrar may reject any acquisition that he deems not to be in the public interest and may if the need arises apply to the court for an order directing a person to dispose of his acquisition.

De-registration of a Broker 18. (1) The Registrar may revoke the License of any broker if he determines that the broker has: (a) ceased to carry on an insurance business in Swaziland; (b) requested in writing the cancellation of the registration; (c) failed to commence operations within one year following the granting of a License; (d) not adhered to the terms and conditions of the License; or (e) acted in contravention of any of the provisions of this Act or other applicable law.

(2) The Registrar shall give a broker notice, in writing, 30 days before he proceeds to cancel the broker's registration and may, defer the cancellation for a period determined by him.

(3) After revoking a broker's License, the Registrar shall publish notice of the revocation in the Gazette and a newspaper of general circulation in Swaziland.

(4) A broker shall cease to carry on insurance business immediately on being informed by the Registrar of the revocation of his License.

Registration and Operation of Insurance Agents

19. (1) A person shall not be registered an insurance agent unless that person is a Swazi citizen.

(2) The Registrar shall lay down minimum qualifications required of any person to whom an agency agreement may be granted by an insurer.

(3) An insurer or insurance broker employing an agent shall issue to that agent a form of agency agreement and shall submit such agreement to the Registrar and no such agreement shall be of any force until the Registrar has given his approval.

(4) The Registrar may, on good cause being shown, refuse to register or may Cancel the registration of any agent.

(5) An application for approval of the granting of an agency shall be made to the Registrar in terms of the regulations. PART IV REGISTRAR OF INSURANCE AND RETIREMENT FUNDS

Registrar of Insurance and Retirement Funds 20. (1) The office of the Registrar of Insurance and Retirement Funds is hereby established.

(2) The Minister shall appoint on conditions determined by him and in compliance with the laws governing the public service, an officer called the Registrar who shall head the office of the Registrar of Insurance and Retirement Funds.

(3) The Minister shall appoint, on conditions determined by him and in compliance with the laws governing the public service, such staff as is required by the Registrar to perform his duties.

44 (4) The Registrar and his staff shall be remunerated out of the Consolidated Fund which shall be reimburse by the office of the Registrar from the Registrar's Levies Account. (5) For purposes of this Act the Registrar shall be referred to as the Registrar of Insurance. Persons

Disqualified from being Appointed as Registrar 21. No person shall be appointed as the Registrar if that person:

(a) is a chairman, director or majority shareholder in an insurance company registered in Swaziland;

(b) is an un-rehabilitated insolvent in terms of the laws of any country;

(c) has been convicted of theft, fraud, forgery or uttering a forged document or perjury or any other crime involving dishonesty or fraud;

(d) is of unsound mind; or

(e) has been a director or chairman of any financial institution that has been wound up in any country:

Provided that, where the person was a director of a subsidiary company which has been wound up as a result of its parent company being wound up and the Minister is satisfied that the subsidiary company did not wholly or partly cause the parent company to be wound up, the person shall be considered eligible for appointment as Registrar.

Functions of the Registrar

22. Subject to the provisions of this Act the Registrar:

(a) shall supervise and exercise of control over the activities of insurers and retirement funds in terms of this Act and any other law of the Kingdom of Swaziland;

(b) shall advise the Minister on matters relating to insurance services and retirement funds either of his own accord or at the request of the Minister;

(d) may, with the approval of the Minister, raise money by way of levies in relation to the assets under the control of insurance companies and retirement funds.

Delegation of the Powers and Assignment of the Duties of the Registrar

23. (1) The Registrar may, on such conditions as he may determine, delegate any of his powers or assign any of his duties to an officer or employee of the office of the Registrar.

(2) A delegation or assignment under subsection (1) shall not:

(a) usurp the Registrar's powers or duties and he may, set aside any decision made thereunder; or (b) prevent the exercise of the power or duty by the Registrar himself. Minister's Authority to Remove the Registrar from Office: 24. (1) The Minister may remove the Registrar from office: (a) If he becomes disqualified subject to any criterion in section 21; (b) If the Minister can demonstrate incompetence on the part of the Registrar; or

(c) If the Minister is of the opinion that the Registrar's continued occupation of his office is detrimental to the functioning of the insurance and retirement fund industry.

Registrar's Enforcement Authority

45 25. (1) The Registrar is hereby empowered to investigate any possible violation of this Act and his powers shall include the investigation or examination of persons not regulated under this Act and the Retirement Funds Act, 2005, in so far as those persons activities may have a bearing on his investigation.

(2) The Registrar may, in consultation with the Minister, appoint a committee to conduct the enquiry and the committee shall be chaired by the Registrar or a person appointed by him.

(3) The Registrar shall inform a person who is the subject of an enquiry in writing of his intention to launch a formal investigation and the person shall ensure that he is ready to participate in the Registrar's investigation within 7 days of the date of the Registrar's letter by ensuring that his documents, electronic records, financial information and officers are available.

(4) The Registrar may subpoena any person who in his opinion has knowledge or custody of any information that has a bearing on his investigation.

(5) Any enquiry shall take place in public unless the Registrar with the concurrence of the Minister orders otherwise. (6) A person who has been subpoenaed and who without proper cause: (a) fails to attend the enquiry at the time and place stated on the subpoena; (b) fails to remain in attendance until excused by the Registrar; (c) refuses to be sworn in as a witness or make an affirmation; (d) refuses to answer or satisfactorily answer any question lawfully put to him; or

(e) refuses to surrender any document or record or any other material article in his possession or custody,

commits an offence and shall, on conviction, be liable to a fine not exceeding E20 000 or to a term of imprisonment not exceeding 1 year or both.

(7) The Registrar is hereby empowered to order any person whose activities are a hindrance to his enquiry to desist from such action failing which he may ask a court to order such person to desist from his actions.

(8) The Registrar is hereby empowered to bring a charge of perjury against any person in a court of law if as a result of his investigation he becomes aware that the person has knowingly made a false statement to any enquiry convened by him.

(9) A person who behaves in such a manner so as to disrupt the committee's work or insults any member of the committee, commits an offence and shall, on conviction, be liable to a fine not exceeding E5 000 or a prison sentence not exceeding 6 months or both.

Confidentiality of Non Public Information.

26. (1) The Minister, Registrar, or any member of their staff shall not divulge any non public information obtained in the performance of their duties under this Act to any person except: / (a) as authorised in this Act; (b) with the written consent of the person to whom the information pertains; (c) by order of court; or (d) as necessary to enforce the provision of this Act in a court of Law.

(2) A person whose action is in violation of the provision of subsection (1) commits an offence arid shall, on conviction, be liable to a fine not exceeding E10 000 or to a term of imprisonment not exceeding 1 year and he shall be individually liable for civil damages arising as a result of his action.

(3) The Registrar shall ensure that every member of his staff, before taking up their posts is made aware of the provisions of this section, and he shall obtain a sworn and witnessed written statement from each staff member stating that they will abide by the provisions of this section.

Registrar's Annual Report to the Minister

46 27. (1) The Registrar shall within 3 months after the expiry of the financial year end of the office of the Registrar prepare and submit to the Minister a report on the activities of his office.

(2) The Minister shall place the report contemplated in subsection (1) before Parliament for consideration.

(3) The Minister shall, on request from Parliament, summon the Registrar before a Committee of Parliament to answer any question or offer any explanation.

Special Provisions Covering the Registrar's Office and the Powers of the Registrar

28. (1) Any communication emanating from the Registrar's office and any communication made to the Registrar's office shall only be valid if made in writing.

(2) The Registrar may, after due and diligent consideration, extend any period for submission of documents for compliance with the provisions of this Act and any other Act that he is authorised to supervise.

(3) The Registrar may direct any person not to make public, withdraw or change any promotional material that he considers misleading or false.

(4) The Registrar may at any time without launching a formal investigation order a person to appear before him at a stated time and place to answer questions on any matter pertaining to the business that he is empowered to supervise in terms of this Act or any other Act. PART V THE INSURANCE AND RETIREMENT FUNDS BOARD

Establishment of Insurance and Retirement Funds Board

29. (1) There is hereby established a juristic person to be known as the Insurance and Retirement Funds Board.

(2) For purposes of this Act the Insurance and Retirement Funds Board shall be known as the Insurance Board.

Constitution of the Board

30. (1) The Board shall be made up of 9 persons as follows:

(a) two members appointed by the Minister from a list of two persons drawn up by the Swaziland Law Society;

(b) two members appointed by the Minister from a list of five persons drawn up by the Swaziland Institute of Accountants;

(c) one members appointed by the Minister from a list of three persons drawn up by the Swaziland Chamber of Commerce who have previously served on the Board of any enterprise for at least 5 years;

(d) one member appointed by the Minister who shall be a person who possesses experience in a relevant field and who shall act as chairman;

(e) one member appointed by the Minister who shall be a representative of employees;

(f) one member appointed by the Minister from a list of three persons drawn up by the Association of Swaziland Business Community; and

(g) one member appointed by the Minster from a list of three persons submitted by the Institute of Chartered Secretaries and Administrators.

(2) The Minister may, where he deems it necessary, appoint a person included in a list drawn up in terms of paragraph (a), (b), or (c) but whom the Minister has not appointed as a member, to sit on the Board as an alternate to a member appointed from the list on which that person was included.

47 (3) The Minister shall designate the deputy chairman.

(4) The Registrar shall not be eligible for appointment to the board.

(5) The Minister shall refer his choice of candidate for appointment to the Board to Cabinet for approval prior to installing such member as a member of the Board, and a person's membership of the Board shall be deemed not to have taken effect until Cabinet has given its approval. Persons Disqualified from being Appointed to the Board 31. No person shall be appointed as a member of the Board who: (a) is a chairman or majority shareholder in an insurance company registered in Swaziland; (b) is an un-rehabilitated insolvent in terms of the laws of any country;

(c) has been convicted of theft, fraud, forgery or uttering a forged document or perjury or any other crime involving dishonesty and fraud;

(d) is of unsound mind; or

(e) has been a director or chairman of any financial institution that has been wound up in any country:

Provided that where the person was a director of a subsidiary company which has been wound up as a result of its parent company being wound up and the minister is satisfied that the subsidiary company did not wholly or partly cause the parent company to be wound up, the person shall be considered eligible for appointment as Registrar. Functions of the Board 32. The functions of the Board are to: (a) adjudicate in any dispute between the Registrar, any insurer or retirement fund;

(b) receive and investigate complaints or submissions from the public or any insurer pertaining to the insurance industry or retirement funds in Swaziland; and

(c) advise the Registrar and Minister on matters concerning the insurance industry and retirement funds either on its own accord or at the invitation of the Registrar or the Minister.

Term of Office of Board Members and Filling of Vacancies

33. (1) Subject to the provisions of section 31 and subsection 33(2), a member of the Board shall hold office for a period not exceeding 3 years and the Chairman shall hold office for a period not exceeding 5 years.

(2) Notwithstanding the provision of subsection (1), the Minister may vary the term of office of the members appointed to the Board at its inception from the period of 3 years by up to 12 months, in order to ensure that the term of office of the Board members do not expire at the same time.

(3) If a seat on the Board becomes vacant because of the termination of a member's membership before the expiry of his term, the Minister may appoint another person in his place for the unexpired portion of his term. (4) A person whose term of office has expired shall be eligible for re-appointment to the Board. Meetings and Decisions of the Board 34. (1) The first meeting of the Board shall be convened by the Minister.

(2) The Minister may at any time convene a meeting of the Board and the Minister shall ensure that the Board meets at least twice a year.

(3) Any member of the Board may request the Minister to convene a meeting of the Board and the Minister shall not refuse any such reasonable request.

(4) The chairman may at any time convene a meeting of the Board to be held at a place and time determined by him:

Provided that he shall inform the Minister and the Registrar of the meeting and its agenda.

48 (5) A majority of Board members shall constitute a quorum.

(6) If the chairman or his deputy is absent from a meeting, the members present shall elect a chairman from the members present.

(7) A decision of a majority of the members of the Board shall constitute a decision of the board and in the event of a tie the presiding chairman shall have a casting vote in addition to his deliberative vote.

(8) All costs associated with any meeting, other than remuneration, shall be paid from the Registrar's Levies Account.

(9) A decision of the Board shall be binding on all parties.

The Chairman of the Board may apply to the High Court to have any decision of the Board made an order of the Court.

Remuneration of members of Board

35. The members and alternate members of the Board shall be remunerated as the Minister determines from the Consolidated Fund which shall be reimburse from the Registrar's Levies Account.

Removal of Members of the Board

36. (1) A member or alternate of the Board shall be instructed by the Minister to vacate his seat on the Board:

(a) if he becomes disqualified subject to any criterion in section 31; or

(b) if he has been absent for two consecutive meetings of the Board without the consent of the chairman.

(2) The Minister may at any time terminate the membership of the Board of any member if, in the opinion of the Minister, sufficient reason exists to believe that the member's continued membership of the Board is detrimental to the good name of the insurance industry and retirement fund industry

PART VI FINANCIAL ARRANGEMENTS PERTAINING TO THE OFFICE OF THE REGISTRAR

Registrar's Levies Account 37. (1) There is hereby established a fund called the Registrar's Levies Account.

(2) The Registrar is hereby empowered to maintain a banking account in the name of the office of the Registrar for the revenue of the Registrar's Levies Account with an institution registered in terms of the Financial Institutions Act, 2005.

(3) The revenue of the Registrar's Levies Account shall consist of monies from the following sources:

(a) levies imposed by the Registrar as authorised in terms of the regulations on the assets held by insurers, retirement funds and any other persons whom the Registrar supervises in terms of the provisions of this Act, and any fees payable as authorised in terms of the regulations;

(b) any penalties and fines imposed in terms of this Act or any other Act and any fines imposed by a court of law in terms of this Act; (c) investment income earned on the assets of the Registrar's Levies Account; (d) all fees payable in terms of this Act and any other Act; (e) any amount paid by the State into the Account; and (f) any donations from any source to the Account.

(4) The Government shall pay into the Registrar's Levies Account any shortfall that arises as a result of the operations of the Office of the Registrar.

Employment of Registrar's Levies Account

49 38. The Registrar's Levies Account shall be controlled by the Registrar and its funds shall be employed:

(a) to reimburse the Consolidated Fund for remuneration of the Registrar, his staff and members of the Insurance and Retirement Fund Board;

(b) to pay for the cost of convening any meetings of the Insurance and Retirement Funds Board;

(c) for the payment of any expenses incurred by the operation of the Office of the Registrar and shall include costs of rental, equipment, stationery and travelling expenses;

(d) for payment of any costs arising as a result of an enquiry called by the Registrar; and

(e) for payment of any miscellaneous expenses directly related to any activity of the Registrar's office arising from the application of this Act.

Budget of the Office of the Registrar

39. (1) Before the commencement of each financial year, the Registrar shall arrange for an estimate of his expenditure and that of the Insurance and Retirement Funds Board expenditure to be made for the next financial year.

(2) The estimates shall take into account:

(a) payment of salaries of the staff of the Registrar's office and members of the Insurance and Retirement Funds Board; (b)cost of stationery, rent and utilities; (c) cost of court applications;

(d) cost for travelling, subsistence and accommodation incurred by the Registrar, his staff and members of the Insurance and Retirement Funds Board in the performance of their duties; (e) cost of maintenance to equipment and buildings and their grounds; (f) cost of replacing or acquiring new equipment; (g) any other justifiable cost associated with the application of this Act; and, (h) the expenses of the office of the Insurance Adjudicator and the Retirement Funds Adjudicator.

(3) The estimate shall be completed at least 30 days before the commencement of the next financial year and shall be submitted to the Minister for approval and the Minister may ask the Registrar to make any adjustments that he considers necessary.

(4) After the Minister has given his approval the actual expenditure may not exceed the estimates without the Minister's approval.

Accounting Auditing and Reporting of Registrar's Levies Account

40. (1) The financial year end of the office of the Registrar shall be the last day of March in each year.

(2) The Registrar shall receive all monies due to or for the benefit of the Registrar's Levies Account and the Registrar will be responsible for accounting of the receipt of that money and its use.

(3) The Registrar may, with the concurrence of the Minister, invest any money of the Registrar Levies Account on behalf of the Office of the Registrar.

(4) The Registrar shall arrange for the Registrar's Levies Account to be audited at the end of every financial year and produce financial statements and shall submit them to the Minister within six months of the expiry of the financial year end.

Registrar's Guarantee Account

41. (1) There is hereby established a fund called the Registrar's Guarantee Account.

50 (2) The Registrar is hereby empowered to maintain a banking account for the revenues of the Registrar's Guarantee Account with an institution registered in terms of the Financial Institution Act, 1975. (3) The revenue of the Registrar's Guarantee Account shall consist of monies from the following sources:

(a) Levies imposed by the Registrar as authorised in terms of the regulations on the commission received by brokers;

(b) Proceeds of insurance policies issued in terms of the guarantee contemplated in section 61 of this Act;

(c) the proceeds of any liquidated assets held by the Registrar in respect of the guarantee contemplated in section 61 of this Act;

(d) any donations received from any source by the fund;

(e)any monies paid by the State into the fund; and

(f) any monies recovered as a result of a court proceeding or out of court settlement against an offending Insurer, broker or agent.

(4) The provisions of section 40 shall be applied to the Registrar's Guarantee Account with every occurrence of "Registrar's Levies Account" being read as "Registrar's Guarantee Account".

(5) The Registrar may invest the funds of the Registrar's Guarantee Account with the concurrence of the Minister on behalf of the Office of the Registrar.

Employment of Registrar's Guarantee Account

42. (1) The Registrar's Guarantee Account shall be controlled by the Registrar and its funds shall be employed to compensate persons who have suffered a loss of monies paid to a registered insurance broker or an agent of such broker, due to any action on the part of such broker or his agent that constitutes a criminal action as determined by the laws of (he Kingdom of Swaziland.

(2) Any moneys recovered as a result of court proceedings or out of court settlement against a broker or agent and in respect of whose actions a payment has been made from the Registrar's Guarantee Account, shall first be appropriated to compensate the Registrar's Guarantee Account.

Insurance and Retirement Benefit Trust Fund.

43. (1) There is hereby established a fund called the Insurance and Retirement Benefit Trust Fund.

(2) The Registrar is hereby empowered to maintain a banking account for the revenues of the Insurance and Retirement Benefit Trust Fund with an institution registered in terms of the Financial Institution Act, 2005. (3) The revenue of the insurance and retirement benefit trust account shall consist of: (a) all moneys payable into the fund in terms of this Act or any other law; and (b) investment returns earned on the assets of the funds as contemplated in this section.

(4) The provision of section 40 shall be applied to the Insurance and Retirement Benefit Trust Fund with every occurrence of "Registrars Levies Account" being read as "Insurance and Retirement Benefit Trust Fund".

(5) The Registrar may invest the funds of the Insurance and Retirement Benefit Trust Fund with the concurrence of the Minister on behalf of the office of the Registrar.

(6) The funds of the Insurance and Retirement Benefit Trust Fund shall only be invested in deposits, money market instruments and fixed interest securities as allowed for in terms of the regulations.

Claims on the Insurance and Retirement Benefit Trust Fund.

44. (1) Any person to whom a benefit was due and which benefit has been paid into the Insurance and Retirement Benefit Trust Fund in terms of subsection 43 (3) (a) may apply to the Registrar for those benefits to be paid to him. 51 (2) If the person contemplated in subsection (1) has died, then his dependants or the nominated beneficiary to his estate may apply to the Registrar to have the benefits paid to them.

(3) Any person who makes an application to the Registrar in terms of subsection (1) or (2) shall provide the Registrar with proof to his satisfaction that their claim is valid.

(4) If any information that the Registrar may have requested from the claimants referred to in this section is supplied to his satisfaction and he is satisfied that the claim is valid, then he shall apply to the court for an order authorising the payment of the benefit.

(5) Before applying to the court for an order authorising the payment of any benefit in terms of this section, the Registrar shall determine in what proportion the benefits shall be paid to each of the claimants to the benefit.

(6) The Registrar may determine the amount of interest to be added to the benefit payable in terms of this section.

(7) No benefit shall be payable to any person from the Insurance and Retirement Benefit Trust Fund unless the court has issued an order authorising the payment of the benefit.

(8) Any person whose application to the Registrar to claim against the assets of the Insurance and Retirement Benefit Trust Fund has been unsuccessful may lodge an appeal with the Insurance Board to have his application reviewed.

(9) After the expiry of a period of fifty years after the payment of an amount into the Insurance and Retirement Benefit Trust Fund in terms of subsection 43 (3) of this Act, and if no successful application has been made to claim that amount or if no application is being considered then the amount shall be paid into the Consolidated Fund, together with interest at a rate as determined by the Registrar.

(10)After the provision of subsection (9) has been complied with, a persons right to any claim agains the Insurance and Retirement Benefit Trust Fund shall expire.

PROVISIONS RELATING TO ADMINISTRATION AND BUSINESS OF INSURERS AND INTERMEDIARIES PART VII INSURERS OFFICERS Registrar may Direct the Removal of Certain Officers 45. (1) The Registrar may direct an insurer to terminate the appointment of any person who has been contracted or employed in any way to provide a service to that insurer if the Registrar is satisfied that the person's appointment may prejudice the interests of policyholders.

(2) The Registrar shall issue the directive contemplated in subsection (1) in writing and he shall furnish the insurer concerned with his reasons for directing the removal of the officer.

(3) The insurer shall ensure that the officer referred to in subsection (1) immediately ceases to be associated with the insurer in any way.

(4) The insurer or the officer may appeal to the Insurance Board to set aside the Registrar's directive.

(5) If no appeal has been lodged against the Registrar's directive within 30 days then the Registrar may apply to the court to make his directive an order of the court.

Registrar to be Notified of Certain Appointments and Terminations

46. (1) An insurer shall inform the Registrar in writing of the appointment of any person as a director or managing executive and shall furnish to the Registrar a brief curriculum vitae of the person and a description of his powers and duties.

52 (2) An insurer shall inform the Registrar in writing of the termination of the services of a director or managing executive and supply him with the reasons for the termination Appointment, Powers and Duties of Auditor

47. (1) Every insurer shall appoint an auditor for his business provided that such appointment shall be of no force unless approved by the Registrar.

(2) An application for approval of the appointment of the auditor must be submitted in terms of the regulations.

(3) The Registrar may withdraw the approval of an auditor's appointment if he becomes aware of any information which indicates that the auditor's appointment might prejudice the policyholders.

(4) An auditor shall immediately upon discovery bring to the Registrar's attention any aspect of the insurer's business that he considers is harmful to the interests of the policyholders.

(5) Where an insurer terminates the appointment of an auditor, the auditor shall, within 30 days, submit a report to the Registrar stating:

(a) whether he is aware of any irregularity financial or otherwise pertaining to the insurer; (b) particulars of the irregularity; and (c) the reason, if any, advanced by the insurer for the termination of his appointment. (6) The Registrar shall not approve any director or employee of an insurer as an auditor.

(7) The auditor shall ensure that every financial statement of the insurer is properly drawn up and fairly reflects the financial position of the insurer.

(8) The auditor shall bring to the notice of the Registrar any irregularity which, in his opinion, may lead to financial loss if not rectified.

(9) No director or employee of an insurer shall hinder the appointed auditor in the performance of his duties and shall surrender any information requested by the auditor.

(10)The approved auditor shall satisfy himself that the statements of assets to be submitted in terms of the regulations correctly represents the insurer's financial position.

Appointment, Powers and Duties of Valuator

48. (1) Every long term insurer shall appoint an actuary as a valuator for his insurance business provided that such appointment shall be of no force unless approved by the Registrar.

(2) An application for approval of the appointment of the valuator must be submitted in terms of the regulations.

(3) The Registrar may, withdraw the approval of a valuator's appointment if he becomes aware of any information which indicates that the valuator's appointment may prejudice the policyholders and or the financial condition of the insurer.

(4) No director or employee of an insurer shall hinder the approved valuator in the performance of his duties and they shall surrender any information requested by the valuator.

(5) If an insurer terminates the appointment of a valuator, the valuator shall within 30 days submit a report to the Registrar stating:

(a) whether he is aware of the occurrence or expected occurrence of any irregularity, financial or otherwise pertaining to the insurer;

(b) particulars of the irregularity; and

53 (6) A valuator shall at any time bring to the Registrar's attention the occurrence or expected occurrence any irregularity that he is aware of which might prejudice the policyholders and or the financial condition of the insurer.

(7) The valuator shall be required to perform the duties referred to in the Regulations and to certify the documents to be submitted to the Registrar in terms of the Regulations. PART VIII CONDUCT OF INSURER'S BUSINESS AND RELATED PROVISIONS Prohibition of Inducements

49. (1) No person may induce a policyholder or a prospective policyholder in any way to enter into a contract of insurance or to make any alterations or additions to or cancel a policy. (2) The provisions of subsection (1) shall not apply to reinsurance policies. Prohibition of Coercion

50. (1) If a person who is a party to a contract in terms of which money is loaned, goods are leased, or credit is granted, is required to provide security by means of an insurance policy to secure the debt incurred by him, then that person shall be entitled to:

(a) either enter into and cede a new policy contract to secure the debt or to cede an existing policy to secure the debt; or

(b) choose the insurer and intermediary with whom he shall conclude a contract or insurance for purposes of securing the debt.

(2) Every party to the contracts referred to in subsection (1) shall be informed of his entitlement in writing.

(3) Non compliance with the provisions of subsection (2) shall render any cession of policy benefits invalid and the benefits shall revert to the policyholder; policyholder being the person who is required to provide the security contemplated in subsection (1)

(4) A person who contravenes the provisions of subsection (1) commits an offence and shall be liable on conviction to a fine of E40 000 or a term of imprisonment of 2 years or both.

Premiums paid in Cash

51. (1) Any person who receives payment of a premium in bank notes or coins shall issue a written receipt for the payment.

(2) The receipt referred to in subsection (1) shall contain in print or stamp the name of the institution that is receiving the payment.

Invalidity of Certain Provisions

52. (1) No person may include in a policy contract or in an endorsement thereto, a provision absolving the insurer for responsibility of the actions, omissions or representations of his agents, employees or representatives.

(2) No person may include in a policy contract or in an endorsement thereto a provision which states that an agent, employee or representative of the insurer had acted on behalf of the policyholder.

(3) No person may include in a policy contract or in an endorsement thereto a provision which makes the fulfilment of an insurers obligations under the contract dependent upon the fulfilment of the obligation of another person under a reinsurance contract.

(4) No persons may include in a policy contract or an endorsement thereto a provision whereby the policyholder waives any of his rights under this Act.

Misrepresentation

53. (1) Subject to the provisions of subsection (2), a policy contract shall not be invalidated on account of the policyholder or his agent having supplied the insurer or his agent with information that is proved to be false except if the false information was of such a

54 nature that it has resulted in the assessment of the risk under the policy being materially affected at the time of its issue, renewal or endorsement.

(2) Where the age of a life assured has been misrepresented to an insurer or an agent, then the policy benefits shall be adjusted so that the policy benefits are equal to those that would have been provided under the policy based on the correct age for the premium being paid.

Insurers' Responsibility for Action of Agent

54. (1) The insurer shall be responsible for the actions of any agents in his employ and shall be liable for any claim for loss or any damages arising from the action of the agent. (2) Any premium paid to the insurer's agent shall be deemed to have been paid to the insurer.

PART IX AMALGAMATION OF BUSINES

Registrar to Approve any Amalgamation of Business between Insurers

55. Any agreement between two or more insurers which will result in the transfer of all or part of the business from one insurer to another shall be of no legal force unless the Registrar has approved the agreement and his decision has been made an order of the court.

Obligation Pertaining to Application

56. (1) The parties to an agreement referred to in section 55 shall, at least 30 days before lodging an application with the Registrar, publish notice of their intention in a newspaper of general circulation in Swaziland.

(2) Any person may make a written representation to the Registrar within 25 days of the publication of the insurer's notice referred to in subsection (1).

(3) The insurer shall supply the Registrar any further information that he may require.

(4) The Registrar may cause any investigation to be made that he considers necessary and which may influence his decision.

(5) If the Registrar is satisfied that the proposed agreement is not against the policyholder's interest or that of the insurance industry he shall approve the transaction and shall apply to the court to have his decision made an order of the court.

Withholding of Approval

57. (1) An approval shall not be granted if any provision relating thereto has not been fulfilled.

(2) An approval shall not be granted, or if granted shall not be valid, if it is inconsistent with this Act.

Valid Approval 58. (1) A court may vary any approval granted by the Registrar (2) The approval endorsed by the court shall be binding on all parties to the transaction. (3) The Companies Act, 1912 , shall apply to any transaction approved by the court as applicable. Costs of Application

59. The costs of any application made by the Registrar in terms of this Part shall be borne by the parties to the agreement.

Registrar to Approve Acquisition of Interest in Insurer

60. (1) A person who intends to acquire an interest in an insurer which will result in him, or him and his associates, acquiring more than 25% of all the shares in the insurer shall notify the Registrar of his intended acquisition and such acquisition shall be of no force until the Registrar has approved the acquisition in writing.

55 (2) The Registrar may attach any condition that he deems to be in the public interest to any acquisition referred to in subsection (1).

(3) The Registrar may reject any acquisition that he deems not to be in the policyholder's or public interest and may if the need arises apply to the court to direct a person to dispose of his acquisition.

PARTX STATUTORY OBLIGATIONS PERTAINING TO INTERMEDIARIES

Rules for Operation for Brokers 61. (1) A licensed broker shall:

(a) as the Minister may by regulation prescribe, maintain professional indemnity insurance and, fidelity guarantees; and

(b) at all times adhere to the code of conduct for brokers published by the Registrar as authorised in terms of the regulations.

(2) The Registrar may order a broker to cease from any practice which he considers might be harmful to the interests of any policyholder or the good name of the insurance industry.

(3) The chairman of each broker shall ensure that all directors, managers, agents and employees of the broker are made aware of and comply with the provisions of the code of conduct specified in subsection (1) (b).

(4) A copy of the code of conduct contemplated in subsection (1) (b) shall be prominently displayed in areas of access to the public at each office of the broker.

Examination of Brokers

62. The Registrar may from time to time, after consultation with the Minister, cause an examination to be made of any insurance broker in a manner consistent with this Act.

Broker Responsibility for Premiums

63. (1) A broker shall be liable to an insurer for any premiums collected by the broker or due to the insurer by virtue of insurance negotiated by the broker.

(2) A broker shall remit to the insurer premiums due under subsection (1) within sixty days of the receipt of the premiums.

(3) A broker shall, prior to remittance in terms of subsection (2), deposit all premiums received from a client in a separate trust account.

Brokers Responsibility for Actions of Agents

64. (1) A broker shall be liable for the acts or omissions of his agents and employees of such agents where the act or omission complained of falls within the area of authority of the agent as explicitly stated in his agency agreement or might reasonably be implied from it by a person seeking insurance.

(2) A broker shall not cause a client to agree to a disclaimer absolving the broker from his responsibilities mentioned in subsection (1).

(3) All premiums paid to a broker's agent or an employee of such agent shall be deemed to have been paid to the broker that is the principal of that agent.

(4) Nothing in this section shall be construed to prevent:

(a) a broker from seeking redress against an agent or employee of an agent as a result of the liability arising under subsection (1) or (3); or

56 (b) an agent from seeking redress against an employee of such agent as a result of the liability arising under subsections (1) or (3).

(5) The guarantees maintained by a broker under section 61 shall cover the potential liability arising under subsections (1) and (3). PART XI JUDICIAL INTERVENTION AND WINDING UP

Application for Judicial Management or Winding up of an Insurer

65. (1) The Registrar, a creditor of an insurer or the insurer himself may apply to the Court for an order to have the insurer placed under judicial management or wound up.

(2) A person who makes an application as contemplated in subsection (1) shall support that application with an affidavit or affidavits stating why his request should be granted.

(3) At the request of the Court, a person who makes an application contemplated in subsection (1) shall supply the Court on request with any additional information that may have a bearing on this case.

(4) After due consideration of any application received in terms of subsection (1) the Court may:

(a) refuse the application;

(b) direct the Registrar to investigate the affairs of the insurer to determine if any order of winding up or judicial management should be made; (c) order that the insurer be placed under judicial management; or (d) order that -the insurer be wound up. Judicial Management of an Insurer 66. (1) An order of Court placing an insurer under judicial management shall extend to his whole business.

(2) The Court shall appoint a judicial manager who shall be selected from a list of three names drawn up by the Registrar with the concurrence of the Minister.

(3) The Court shall determine the amount of remuneration payable to the Judicial manager and shall have absolute discretion in directing his removal from the office.

(4) The judicial manager shall take over the entire business of the insurer.

(5) The Court shall on submission made by the Registrar determine whether the judicial manager may issue new policies other than paid up policies.

(6) The Court shall specify to the judicial manager his powers and duties.

(7) The law relating to judicial management of companies shall apply to judicial management of insurers in so far as they are not inconsistent with the provisions of this Act or any order of the Court in terms of this section.

(8) The judicial manager shall approach the Court for any instruction pertaining to the duties conferred on him by this section.

(9) The judicial manager shall notify the Registrar of any application that he intends to make to the Court and also inform the Registrar of any instruction received from the Court.

(10)Nothing contained in this section shall be construed as curtailing the powers vested by this Act in the Registrar.

(11)The Registrar shall make application to the Court and be heard on any matter which he deems relevant to the interest of the policyholders.

57 (12)The judicial manager shall report to the Court within a period designated by the Court on the course of action that, in his opinion, best serves the interests of the policyholders and that report shall include:

(a) the transfer of the insurer's obligations or part of his obligations to another person and shall allow for a reduction or increase in those obligations as the financial condition of the insurer allows;

(b) whether the insurer should be allowed to carry on his business or part of his business and he shall recommend any conditions that he considers necessary; (c) whether the insurer's business should be wound up; (d) the manner in which each class of policy should be dealt with; and (e) a recommendation of any other course of action that serves the interest of the policyholders.

(13) The Court shall after considering the recommendations contemplated in subsection (12) issue an order authorising a particular course of action and this Act shall be binding on all persons.

Winding up of an Insurer

67. (1) An order of a Court directing the winding up of an insurer shall apply to the classes of business directed to be wound up or to the insurer's entire business if so ordered.

(2) The winding up of the insurer shall be managed by a liquidator appointed by the Court who shall operate under the control of the Court.

(3) The Court shall determine the liquidator's remuneration and shall have sole discretion in determining his removal from office.

(4) The Court may issue such directives to the liquidator as it deems serves the interest of the policyholders and any such directive shall prevail over any other law which conflicts with such directives.

(5) The law relating to winding up of companies shall apply in so far as they are not in conflict with any directive issued by the Court.

(6) The liquidator shall approach the Court for any instructions pertaining to any duties conferred upon him in terms of this section.

(7) The liquidator shall notify the Registrar of any application that he intends to make to the Court and also inform the Registrar of any instructions received from the Court.

(8) The Registrar may make any submission to the Court that he deems serves the interest of the policyholders.

(9) The available funds shall be distributed to each class of business and each policyholder on a basis as determined by the Court which shall take into account that:

(a) no part of any assets being held for a particular class of business shall be appropriated for transfer to another class of business;

(b) any assets not attributable to any class of business shall be distributed among all classes of business on a basis approved by the Court.

(10)After final winding up, all the insurer's obligations shall be terminated in respect of that class of business that has been wound up. PART XII STATUTORY LIMITATIONS Limitations of Business

68. (1) An insurer may only carry on that class of insurance business which the Registrar has authorised the insurer in writing to carry on in terms of this Act or any other business that the Registrar has authorised the insurer to carry on.

(2) An insurer may not carry on those classes of insurance business for which it has not obtained authorisation or those classes of business which the Registrar has prohibited the insurer in writing from carrying on.

58 (3) An insurer may not carry on those classes of insurance business that the Registrar has specified by publication in the Gazette as prohibited.

Policy Suspended until First Premium Paid

69. The obligations of an insurer under a policy to provide policy benefits shall be suspended until the insurer or his agent or representative has received the first premium or an arrangement to the insurers satisfaction has been made for the premium to be paid by debit order, stop order, credit card or otherwise provided that for classes of business other than individual life policies where the practice of the insurer has been to undertake the risk without making prior arrangements for the payment of premiums, then the policy benefits shall come into force from a date as stipulated or implied on the policy contract.

Remuneration of Intermediaries

70. No consideration offered, provided or accepted by or for any person for providing services as an intermediary shall in aggregate exceed the amounts as provided for in terms of the regulations.

Undesirable Business Practice

71. (1) The Registrar may, in consultation with the Minister, declare a particular business practice undesirable or prohibit certain insurers from carrying on a certain business practice.

(2) The Registrar may, in consultation with the Minister, direct an insurer to cease from carrying on a particular business practice if he intends to investigate that business practice and determine its desirability.

(3) The Registrar may direct an insurer to amend any of his business practices.

(4) The Registrar may direct an insurer to make any amends that he deems necessary and which arose as a result of a business practice declared undesirable by him in order to protect the good name of the insurance industry.

(5) An insurer shall immediately cease to conduct a particular business practice if the Registrar has declared that practice undesirable or if the Registrar has directed the insurer to suspend that practice or if the Register has prohibited the insurer from carrying on a business practice.

(6) If the Registrar wishes to declare a business practice undesirable, he shall do so in accordance with the regulations. PART XIII POLICYHOLDER PROTECTION

Registrar's Authority to Propose Rules for Policy Contents 72. (1) The Registrar may at any time:

(a) propose rules aimed at ensuring that policies are entered into, executed or enforced in accordance with sound insurance principles; or (b) make proposals regarding the content of policy wording relating to: (i) information that he considers should be disclosed; or

(ii) whether certain provisions effecting the rights of policyholders should be included or excluded.

(2) The Registrar shall publish the proposals contemplated in subsection (1) in the Gazette and in the same notice invite interested parties to comment thereon.

(3) The Registrar shall, after considering any comments, submit his proposals to the Minister for consideration.

(4) The Minister may reject the proposals or he may publish the proposals in the Gazette in which case it shall be binding on all parties concerned.

Policy to be Actuarially Sound

73. (1) A long term insurer shall not offer a long term policy contract unless the appointed valuator has certified in writing that the terms of the policy are actuarially sound. 59 (2) A long term insurer shall not award a bonus to a policyholder unless the appointed valuator has certified that the bonus is actuarially sound.

(3) A long term assurer shall not make a comparison between the premiums and benefits of different long term policies unless the valuator certifies that the comparison is actuarially sound.

LONG TERM INSURERS PARTXIV FINANCIAL MATTERS AND RELATED ISSUES Assets

74. (1) An insurer shall have in respect of his long term insurance business, on a day when a valuation is made by the valuator of his assets and liabilities :

(a) assets having a value no less than the value of his liabilities in respect of such business; and

(b) a contingency reserve as estimated by the valuator to allow for investment value fluctuations in respect of products not linked to market value, provided that the basis of valuation has been submitted to the Registrar and has been approved by him; and

(2) A long term insurer shall not create any distributable reserves or pay a dividend while it cannot comply with subsection (1) or if the creation of the reserve or payment of dividend will result in it not being able to comply with the provisions of subsection (1).

(3) Assets which have been pledged or encumbered in any way shall not be included as an asset for purposes of subsection (1).

(4) An insurer shall maintain separate registers of assets in respect of long term business and other business. (5) An insurer shall maintain the assets of each class of insurer business separately. Investment of Long Term Insurer's Assets

75. (1) Every insurer shall ensure that his long term assets are invested in accordance with the provisions of the regulations.

(2) The Minister may at any time amend the provisions of the regulations governing the investment of long term assets

(3) The Minister shall give 30 days notice of his intention to amend the regulations by publishing such notice in the Gazette and a newspaper of general circulation in Swaziland.

(4) Any interested party may make submissions to the Minister on his intention to amend the regulations.

(5) Any amendments made by the Minister to the regulations shall take effect 6 months after the date of publication of the amendments in the Gazette.

Prohibition of use of Assets 76. A long term insurer shall not : (a) encumber its assets; (b) allow its assets to be held in the name of another person on its behalf; (c) borrow money directly or indirectly; (d) issue a guarantee or create for itself any obligations under a surety; or (e) invest in derivative instruments except for the purposes of reducing risks. Valuation of Liabilities for Long Term Insurance

77. (1) The valuator appointed to an insurer shall perform an actuarial valuation of the insurer as at the end of each financial year, and at such other dates as may be required by the Registrar. 60 (2) The valuation report shall been submitted to the Registrar before the expiry of a period of six months from the insurers financial year end.

(3) The Registrar may extend the period contemplated in subsection (2) if a request is made in writing.

(4) The actuarial valuation report contemplated in subsection (1) shall be in accordance with the Regulations.

(5) The Registrar may reject the valuation report contemplated in subsection (2) if, in his opinion, the valuation report does not accurately reflect the financial condition of the insurer. Maintenance of Financially Sound Condition 78. (1) An insurer shall at all times maintain its business in a financially sound condition by: (a) having sufficient assets to enable it to meet its liabilities at any time; and, (b) conducting its business according to sound insurance and business principles.

(2) An insurer shall be deemed to have failed to comply with the provisions of subsection (1) if it cannot comply with the provisions of section 74.

(3) An insurer shall, within 30 days of becoming aware that it has failed to comply with the provision of subsection (1), inform the Registrar of the failure.

(4) An insurer shall not create a distributable reserve or pay a dividend if it has failed to comply with the provisions of subsection (1) or if the creation of the distributable reserve or payment of the dividend will result in it not being able to comply with the provisions of subsection (1).

Failure to Maintain Financially Sound Conditions

79. (1) If an insurer has failed to comply with the provisions of section 78 or if the Registrar is of the opinion that the insurer is likely to fail to comply with the provisions of section 78 then the insurer shall supply to the Registrar:

(a) information explaining the reasons for his failure or pending failure; and

(b) a scheme to restore his compliance with section 78 or to avert failure to comply with section 78.

(2) The Registrar may ask the insurer to make any amendments to the scheme contemplated in subsection (1) (b).

(3) The Registrar may attach any additional conditions to the insurer continuing registration after considering any scheme contemplated in subsection (1) (b). (4) The Registrar may after considering the scheme: (a) authorise the insurer to proceed to implement the scheme; or

(b) act against the insurer in terms of section 65 or section 66 if he considers this to be in the policy holder's and the insurance industry's interest.

Returns to Registrar

80. (1) An insurer shall submit to the Registrar in respect of his long term insurance business within 6 months of the expiry of his financial year end the return required to be submitted as prescribed by the regulations.

(2) The Registrar may request an insurer to make changes to any return submitted to him. (3) An insurer shall supply to the Registrar any additional information requested by him. Failure to Submit Returns 81. (1) An insurer who fails to submit the returns referred to in section 80 in the prescribed time commits an offence and shall be liable to a penalty of E2000 plus E10 for every day that the returns are overdue.

(2) An insurer may apply to the Registrar for an extension of the time in which to submit the returns contemplated in section 80.

61 SHORT TERM INSURERS PART XV FINANCIAL MATTERS AND RELATED ISSUES Assets

82. (1) An insurer shall have in respect of his short term insurance business on a day when a valuation is made of his assets and liabilities :

(a) assets having a value not less than the value of his liabilities in respect of such business;

(b) an amount calculated in accordance with the regulations.

(2) An insurer shall not create any distributable reserves or pay a dividend while it cannot comply with subsection (1) or if the creation of the reserve or payment of dividend will result in it not being able to comply with the provisions of subsection (1).

(3) Assets which have been pledged or encumbered in any way shall not be included as an asset for purposes of subsection (1). (4) An insurer shall maintain separate registers of assets in respect of short term business and other business. (5) An insurer shall maintain the assets of each class of insurer business separately. Investment of Short Term Insurer's Assets

83. (1) Every insurer shall ensure that his short term assets are invested in accordance with the provisions of the regulations.

(2) The Minister may at any time amend the provisions of the regulations governing the investment of short term assets.

(3) The Minister shall give 30 days notice of his intention to amend the regulations by publishing such notice in the Gazette and a newspaper of general circulation in Swaziland.

(4) Any interested party may make submissions to the Minister on his intention to amend the Regulations.

(5) Any amendments made by the Minister to the regulations shall take effect 6 months after the date of publication of the amendment in the Gazette. Prohibition on use of Assets 84. With respect to his short term assets an insurer shall not: (a) encumber its assets;

(b) allow its assets to be held in the name of another person on its behalf;

(c) borrow money directly or indirectly; (d) issue a guarantee or create for itself any obligations under a surety; or (e) invest in derivative instruments except for the purposes of reducing risk. Valuation of Liabilities for Short Term Insurance 85. The liabilities of a short term insurance shall be the sum of: (a) An estimate of the amount the insurer expects to pay in respect of: .

(i) claims that have been reported and which have not yet been paid, due allowance being made for reassurance recoveries; and

(ii) claims that have been incurred but have not yet been reported, due allowance being made for reassurances:

Provided that this amount shall be subject to minimum of the amount established according to the regulations;

(b) a reserve for unearned premium calculated in accordance with the regulations;

(e) an unexpired risk provision representing the underwriting loss suffered by an insurer hi any class of short term business and which the insurer together with his auditor considers it necessary to defray the possible cost of claims; and

62 (d) a contingency reserve calculated in accordance with the regulations. Maintenance of Financially Sound Condition 86. (1) An insurer shall at all times maintain its short term business in a financially sound condition by: (a) having sufficient assets to enable it to meet its liabilities at any time; and, (b) conducting its business according to sound insurance and business principles.

(2) An insurer shall be deemed to have failed to comply with the provisions of subsection (1) if it cannot comply with the provisions of section 82.

(3) An insurer shall within 30 days of becoming aware that it has failed to comply with the provision of subsection (1) inform the Registrar of the failure.

Failure to Maintain Financially Sound Conditions

87. (1) If an insurer has failed to comply with the provisions of section 86 or if the Registrar is of the opinion that the insurer is likely to fail to comply with the provisions of section 86 then the insurer shall supply to the Registrar:

(a) information explaining the reasons for his failure or pending failure; and

(b) a scheme to restore his compliance with section 86 or to avert failure to comply with section 86.

(2) The Registrar may ask the insurer to make any amendments to the scheme contemplated in subsection (1).

(3) The Registrar may attach any additional conditions to the insurer, continuing registration after considering any scheme contemplated in subsection (1).

(4) The Registrar may after considering the scheme:

(a) authorise the insurer to proceed to implement the scheme; or

(b) act against the insurer in terms of section 65 or section 66 if he considers this to be in the policyholder's and the insurance industry's interest.

Returns to Registrar

88. (1) An insurer shall submit to the Registrar in respect of his short term insurance business within 6 months of the expiry of his financial year end the return required to be submitted as prescribed by the regulations. (2) The Registrar may request an insurer to make changes to any return submitted to him. (3) An insurer shall supply to the Registrar any additional information requested by him. Failure to Submit Returns 89. (1) An insurer who fails to submit the returns referred to in section 88 in the prescribed time commits an offence and shall be liable to a penalty of E2000 plus El0 for every day that the returns are overdue.

(2) An insurer may apply to the Registrar for an extension of the time in which to submit the returns contemplated in section 88. PART XVI CONSIDERATION AND ADJUDICATOR OF COMPLAINTS

Submission and Consideration of Complaints

90. (1) Notwithstanding the provisions of any contract, policy document, any other Act or common law practice a complainant shall have the right to lodge a written complaint with an insurer, broker or agent or any other person.

63 (2) A complaint so lodged shall be properly considered and replied to in writing within 30 days after the receipt thereof.

(3) If the complainant is not satisfied with the reply contemplated in subsection (2), or if the person with whom the complaint is lodged fails to reply within 30 days after the receipt of ' the complaint, the complainant may lodge the complaint with the Adjudicator.

Establishment of Office of Insurance Adjudicator 91. (1) There is hereby established an Office which shall be known as the Office of the Insurance Adjudicator. (2) The function of the Office shall be performed by the Insurance Adjudicator. Appointment of Adjudicator

92. (1) The Minister shall, after consultation with the Insurance and Retirement Funds Board and in compliance with the laws governing the public service appoint a person as the Insurance Adjudicator, hereinafter referred to as the Adjudicator.

(2) No person shall be appointed as Adjudicator unless he or she is qualified to be admitted to practise as an advocate or as an attorney under the Legal Practitioners Act, 1964, and:

(a) for an uninterrupted period of at least 10 years practised as an advocate or attorney;

(b) for an uninterrupted period of at least 10 years was involved in the tuition of law and also practised as an advocate or attorney for such period as renders him or her suitable for appointment as Adjudicator; or

(3) The Adjudicator shall be appointed for a period of three years and may be re-appointed on expiry of bis or her term of office.

(4) The Adjudicator may at any time resign as Adjudicator by tendering his in writing to the Minister at least three months prior to the date on which the adjudicator wishes to vacate office, unless the Minister allows a shorter period.

(5) The Minister may, after consultation with the Insurance Retirement Funds Board, remove the Adjudicator from office on the ground of misbehaviour, incapacity or incompetence.

Main Object of Adjudicator

93. The main object of the Adjudicator shall to be dispose of complaints lodged in terms of section 90 of this Act in a procedurally fair, economical and expeditious manner.

Disposal of Complaints

94. (1) In order to achieve his main object, the Adjudicator:

(a) shall, subject to paragraph (b), investigate any complaint and may make the order which any court of law may make; and

(b) may, if it is expedient and prior to investigating a complaint, require any complainant first to approach an organisation established for the purpose of resolving disputes in the Insurance industry or part thereof, and approved by the Registrar.

(2) Any complaint dealt with in terms of subsection (1) (b), shall be recorded by the Adjudicator and shall, for purposes of section this section be deemed to be a receipt of a complaint

(3) If the complaint, dealt with in terms of subsection (1) (b), is not resolved, the complainant may again lodged the complaint with the Adjudicator, who shall deal with it in terms of subsection (1) (a).

Opportunity to Comment

64 95. When the Adjudicator intends to conduct an investigation into a complaint, he or she shall afford the person against whom the allegations contained in the complaint are made, the opportunity to comment on the allegations. Parties to Complaint 96. The parties to a complaint shall be: (a) the complainant; (b) the person against whom the complaint is directed;

(c) any person who has applied to the Adjudicator to be made a party and who has a sufficient interest in the matter to be made a party to the complaint; and

(d) any other person whom the Adjudicator believes has a sufficient interest in the matter to be made a party of the complaint.

Jurisdiction and Prescription 97. (1) The Adjudicator shall, subject to section 98, investigate a complaint notwithstanding that the complaint relates to a matter which arose prior to the commencement of this Act.

(2) The Adjudicator shall not investigate a complaint if, before the lodging of the complaint, proceedings have been instituted in a court in respect of a matter which would constitute the subject matter of the investigation.

(3) Receipt of a complaint by the Adjudicator shall interrupt any running of prescription in terms of any Act or the rules of the fund in question.

Time Limit for Lodging Complaints

98. (1) The adjudicator shall not investigate a complaint if the act or omission to which it relates occurred more than three years before the date on which the complaint is received by him or her in writing.

(2) If the complainant was unaware of the occurrence of the act or omission contemplated in subsection (1), the period of three years shall commence on the date on which the complainant became or ought reasonably to have become aware of such occurrence, whichever occurs first. (3) The Adjudicator may, on good cause shown, or of his or her own motion: (a) either before or after expiry of any period prescribed by this Part, extend such period; or (b) condone non-compliance with any time limit prescribed by this Part.

Procedure of Conducting Investigation

99. (1) The Adjudicator may follow any procedure which he or she considered appropriate in conducting an investigation, including procedures in an inquisitorial manner.

(2) The Adjudicator may obtain copies of any document or correspondence contained in the files of the Registrar.

iLegal Representation

100. No party shall be entitled to legal representation at proceedings before the Adjudicator except where the adjudicator has given permission for the parties to obtain legal representation or where the Adjudicator has requested the parties to obtain legal representation.

Record of Proceedings

101. (l)The Adjudicator shall ensure that a permanent record of the proceedings relating to the adjudication of a complaint, and the evidence given, is kept whether in writing or by mechanical or electronic means.

(2) Any member of the public may obtain a readable copy of the record on payment of a fee, determined by the Adjudicator.

(3) The Registrar may, for purposes of the performance of his or her functions in terms of this or any other Act, rely on a copy of the record without the need of any further proof. 65 Statement by Adjudicator Regarding Determination

102.After the Adjudicator has completed an investigation, he or she shall send a statement containing his or her determination and the reasons therefore, signed by him, to all parties concerned as well as to check the clerk or the Registrar of the court which would have had jurisdiction had the matter been heard by a court. Interest on Amount Awarded

103.Wh.ere a determination consists of an obligation to pay an amount of money, the debt shall bear interest as from the date and at the rate determined by the Adjudicator.

Enforceabilty of Determination

104.(1) Any determination of the Adjudicator shall be deemed to be civil judgement of any court of law had the matter in question been heard by such court, and shall be so noted by the clerk, or the Registrar of the court, as the case may be.

(2) A writ or warrant of execution may be issued by the clerk or the Registrar of the court in question and executed by the sheriff of such court after expiration of a period of six weeks after the date of the determination, on condition that no application contemplated in section 105 has been lodged.

Access to Court

105.(1) Any party who feels aggrieved by a determination of the Adjudicator may, within 21 days after the date of determination, apply to a court which has jurisdiction, for relief, and shall at the same time give written notice of his intention so to apply to the other parties to the complaint.

(2) The court contemplated in subsection (1) shall have the power to consider the merits of the complaint in question, to take evidence and to make any order it deems fit.

Powers of Adjudicator

106.The Adjudicator may with the concurrence of the Registrar:

(a) hire, purchase or otherwise acquire such moveable property as may be necessary for the performance of his or her functions and may let, sell or otherwise dispose of property so purchased or acquire;

(b) in order to perform his or her functions, enter into an agreement with any persons for the performance of any specific act or function or the rendering of specific services;

(d) employ persons to assist in the performance of his or her functions;

(e) obtain such professional advice in the performance of this functions as may be reasonably required;

(f) subject to such conditions as he may determine, delegate any of his functions contemplated in section 93, to an employee of his or her Office; or

(g) in general do anything which is necessary or expedient for the achievement of his or her object and the performance of his or her functions.

Expenses of the Adjudicator

107.(1) The financial year end of the Office of the Adjudicator shall be last day of February of each year.

(2) Before the commencement of each financial year, the Adjudicator shall submit to the Registrar an estimate of the expenditure of his office for the next financial year.

(3) The estimate contemplated in subsection (2) shall take into account any justifiable expenses that the Adjudicator might incur in the performance of the duties imposed on him in terms of this Act.

66 (4) The estimate shall be completed at least 60 days before the commencement of the next financial year and submitted to the Registrar for approval and the Registrar may ask the Adjudicator to make any adjustments that he considers necessary.

(5) After the Registrar had given his approval, the actual expenditure by the Office of the Adjudicator may not exceed the estimated without the Registrar's approval.

(6) The expenses of the Office of the Adjudicator shall be paid by the office of the Registrar of Insurance.

(7) The adjudicator shall ensure that any accounts payable are brought to the attention of the Registrar timeously.

Remuneration and Terms and Conditions of Employment of Adjudicator and Employees

108. (l)The remuneration and other terms and conditions of employment of:

(a) the Adjudicator shall be determined by the Minister in consultation with the Insurance and Retirement Funds Board; and

(b) any employee of the Adjudicator shall be determined by the Insurance and Retirement Funds Board. (2) Any remuneration of the Adjudicator and his employee shall be paid by the Registrar. Report of Adjudicator

109. The Adjudicator shall each year within six months after the end of the financial year, submit a report to the Minister on his activities during the financial year. Offences and Penalties 110. A person who: (a) insults the Adjudicator;

(b) anticipates a determination of the Adjudicator in any manner calculated to influence the determination;

(c) wilfully interrupts any proceedings conducted by the Adjudicator or misbehaves himself or herself in any manner in the place where the proceedings are being held; or

(d) in connection with the complaint does anything which, if done before a court of law, would have constituted contempt of court; commits an offence and shall be liable on conviction to a fine not exceeding E5 000 or to imprisonment for a period not exceeding three months.

Limitation of Liability

111. The Adjudicator, or any of his or her employees, shall not be liable in respect of anything done or omitted to be done in good faith in the exercise of a power or the performance of the duty conferred or imposed by or under this Act.

Liquidation of Office of Adjudicator

112.The Office of the Adjudicator shall not be placed in liquidation except by Act of Parliament.

PARTXVII FINAL PROVISIONS

Days of Grace and Non Forfeiture Provision 113.(l)If any premium, payable monthly on a long term policy is not paid on its due date, the insurer shall maintain the policy in force for a period of 1 month from the start of the due date, for the full sum insured.

(2) The insurer shall be liable to pay any claim arising in the period and may deduct the outstanding premium from the benefit payable.

67 (3) Notwithstanding the provisions of subsection (1), if premiums have been paid continuously for at least 3 years in the case of a long term policy and if a premium due is not paid within the period mentioned in subsection (1) the insurer shall either :

(a) issue a paid up policy in lieu of the policy and all his obligation under the policy shall be discharged; or

(b) apply the value of the policy established by the valuator in keeping the policy in force.

(4) The insurer shall when carrying out any action contemplated in subsection (3) provide full details of the basis employed and declare all the benefits and obligations due to and by the policyholder under the paid up policy or while his policy is kept in force in terms of subsection (3).

(5) The provisions of subsections (3) and (4) shall not apply to short term insurance business or in the case of long term insurance business of such a nature for which a cash value is not normally obtainable.

(6) If any premium due under an assistance policy is not paid by its due date the insurer shall maintain the policy in force for the full value of the benefits for a period of 1 month provided that if premium on the policy were payable for a term less than the duration of the policy, and premiums have been paid for at least 3 years, the period shall be 3 months.

General Penalty

114.A person who contravenes any provision of this Act or its regulations commits an offence and, if no penalty is specially prescribed in this Act for that contravention, shall be liable on conviction to a fine not exceeding E40 000 or to a term of imprisonment not exceeding two years.

Penalty for False Representation

115.Any person who submits false information on any document required in terms of this Act commits an offence and on conviction he shall be liable to a fine not exceeding of E40,000 or to imprisonment for a period not exceeding two years.

Decisions of the Registrar and Insurance Board may be made an Order of the Court

116.The Registrar or the Chairman of the Insurance Board may apply to the court to have any of their decisions made an order of the court.

Adherence to the Provisions of this Act shall not Constitute an Offence

117.Any person who in good faith supplies information to the Registrar, a court or the Insurance Board in accordance with the provisions of this Act shall not be guilty of an offence in terms of any law, or be subject to sanctions in terms of any code of conduct or ethics or be in breach of any agreement.

Power to make Regulations and Issue Directives

118.(l)The Minister may, in consultation with the Registrar, the Board and such other person or persons as he may in his discretion consult, by Notice published in the Gazette, make regulations not in conflict with this Act, which may include prescribing:

(a) ways in which formalities required in terms of the Act shall be executed and shall include the process of registration and the approval of the valuator and auditor;

(b) the manner where necessary in which an insurer shall maintain records of his business;

(d) any other duties to be carried out by the valuator and auditor.

68 (2) The Registrar may, in consultation with the Board, by Notice published in the Gazette, issue directives not in conflict with this Act, which may include prescribing: (a) the procedures to be followed for registration of brokers and agents; (b) the directives that may be issued by the Registrar; (c) valuation assumptions to be used in valuing liabilities; or (d) prudent investment guidelines.

(3) The Minister may either of his own accord, or if he is ordered by Parliament to do so, order the Registrar to withdraw or amend any directives which have been issued by the Registrar

Repeal of Legislation

119.(l)The Swaziland Royal Insurance Corporation Order, 1973 (King's -Order-in-Council 32 of 1973) is, to the extent that it is inconsistent with this Act, hereby repealed.

(2) The Control of Insurance Order, 1973, (Kings Order-in-Council 33 of 1973) is hereby repealed.

69 THE FINANCIAL INSTITUTIONS ACT Commentary

The Financial Institutions Act provides for the regulation and supervision of financial institutions in Swaziland. It firstly lays down the requirements for a license in order to carry on a banking business.

In this regard, application has to be made to the Central Bank, accompanied by a copy of the Memorandum and Articles of Association, a statement of the address of its head office, a copy of its balance sheet at a date within 90 days prior to the date of its application, full particulars of the business it proposes to carry on, the location of its principal and other places of business in Swaziland, evidence in the case of a foreign financial institution that it is subject to comprehensive supervision or regulation by the appropriate authorities in its home country, and any other information the bank may require.

Part III of the Act lists the financial requirements and limitations of the bank. It gives direction as to the amount of capital and reserve account of any financial institution. Section 23 requires there to be minimum liquid assets maintained. It states that the bank may from time to time, by notice in the gazette prescribe that every financial institution shall maintain liquid assets amounting to not less than a prescribed percentage.

The Act also places limitations on specified operations and activities, for example, no financial institution shall directly or indirectly grant any loan to any person such that the value of the loan exceeds 25% of the unimpaired paid up or assigned capital and unimpaired balance in the Reserve account of the financial institution. Secondly, a financial institution may not grant any loan against the security of its own shares or those of any other licensed financial institutions. Thirdly, it may not grant or permit to be outstanding unsecured loans, advances or credit facilities of an aggregate amount in access of E50 000 to its directors, to any firm, partnership, syndicate or association in which it or any of its directors is an owner or shareholder. Also, it may not grant or permit to be outstanding to any officer or employee unsecured loans, advances or credit facilities which in the aggregate amount exceed one year’s emoluments of such officer or employee.

A financial institution may not, of its own account engage in the wholesale or retail trade including import and export trade. Lastly, it may not acquire or hold any part of the share capital of any financial, commercial, agricultural, industrial or other undertaking except such shareholdings as a financial institution may acquire in the course of the satisfaction of debts due to it.

Part IV of the Act makes provision for the appointment and duties of auditors. It states that every year every financial institution shall appoint an independent auditor, satisfactory to the Central Bank, whose duty shall be to make a report to the shareholders of a local financial institution or to the head of a foreign one upon the annual balance sheet and profit and loss account. In every report he has to state whether in his opinion the books have been prepared in accordance with standard banking practice, whether they fairly represent the financial institutions affairs and, if he has called for explanations or information from the directors, officers or agents of the financial institution, whether such are satisfactory.

According to section 36 every financial institution has to submit to the bank in duplicate, not later than the 14th day of each month, a statement showing the assets and liabilities at the close of business on the last business day of the preceding month. It shall also submit to the bank on a quarterly basis an analysis of its assets and liabilities and income and expenses at the close of the last business day of the calendar quarter.

Section 43 covers the confidentiality of information. It states that nothing in the Act shall authorise the Minister or the Central Bank to enquire into the affairs of any individual customer of a financial institution.

Section 66 repeals the financial Institutions (Consolidation) Order no.23 of 1975.

The Financial Institutions Act, 2005 (Act No. 6 of 2005)

An Act to provide for regulation and supervision of financial institutions and for matters incidental hereto.

ENACTED by the King and the Parliament of Swaziland.

ARRANGEMENT OF SECTIONS PART I PRELIMINARY PROVISIONS 1. Short title and commencement. 2. Interpretation. 3. Non-applicability of this Act.. 4. Exemptions. PART II LICENSES

5. Prohibition against carrying-on of business by a financial institution without a license. 6. Application for License to carry on banking business. 7. Financial institutions deemed to be licensed under this Act. 8. Investigation of persons suspected of carrying on business without a license. 9. Authority to take deposits. 10. Use of the word "bank" in title. 11. .Certain words not to be used in name of financial institution. 12. Local financial institutions to be incorporated. 13. Licensed person to display name and License under Act. 14. General prohibitions. 15. Formation of conglomerates. 16. Revocation of License of a financial institution. 17. Licensing of agents and annual fees. 18. Disclosable information. PART III FINANCIAL REQUIREMENTS AND LIMITATIONS 19. Capital and reserve account. 20. Amount of capital and reserve account. 21. Provisions to be made for certain items. 22. Prescribed investments to be maintained. 23. Minimum liquid assets to be maintained 24. Limitations on specific operations and activities. 25. Loans and advances secured by hypothec. 26. Foreclosure of hypothec 27. Allocation of proceeds. 28. Hypothecation deeds to be prepared by the financial institution.

71 PART IV AUDIT, INFORMATION AND EXAMINATION 29. Appointment and duties of auditors. 30. Auditor's right to access to books. 31. Powers of the Bank in relation to auditors. 32. Audit committee. 33. Termination of appointment of auditor. 34. Financial records. 35. Annual accounts. 36. Returns. 37. Failure to provide information. 38. Reporting of suspicious transactions. 39. Examinations. 40. Production of records and information for examiner. 41. Other offences. 42. Powers after examination. 43. Confidentiality of information. 44. Publication of information. 45. Annual report by Bank. PART V MISCELLANEOUS PROVISIONS 46. Enforcement of compliance. 47. Liabilities of directors and officers. 48. Failure to secure compliance. 49. Persons disqualified as directors, etc. 50. Reserve for losses due to negligence or dishonesty. 51. Financial holidays. 52. Substitution for depositor's signature. 53. Acceptance of deposits by insolvent financial institutions. 54. Anti-competitive agreements. 55. Tying provisions. 56. Board of directors. 57. Transactions involving directors, principal shareholders, officers, or affiliates. 58. Acquisition and ownership of facilities, fixed assets, and other real property 59. Investment in facility. 60. Other real property.

61. Liquidation and re-organisation of a financial institution.

PART VII GENERAL PROVISIONS AND REPEAL 62. Regulations. 63. Bylaws 64. Appeals.

65. Application to Swaziland Development and Savings Bank.

66. Repeal.

SCHEDULE Part I – Curatorship Part II - Voluntary Liquidation Part III - Compulsory Liquidation PART I PRELIMINARY PROVISIONS Short Title and Commencement.

1. This Act may be cited as the Financial Institutions Act, 2005, and shall come into operation on such date as the Minister may, by notice in the Gazette, appoint. Interpretation- 1. In this Act, unless the context otherwise requires: "affiliate," in respect of any financial institution, means:

(a) any company, association, syndicate, partnership or other body of persons corporate or unincorporated in which twenty-five percent or more of any class of voting shares or other voting participation is directly or indirectly owned or controlled by such financial institution, or is held by it with power to vote; or

(b) any company, association, syndicate, partnership or other body of persons corporate or unincorporate in which the election of a majority of directors is controlled in any manner by such financial institution;

"Bank" means the Central Bank of Swaziland established under the Central Bank of Swaziland Order, 1974;

"bank" means a company incorporated in accordance with the provisions of the Companies Act, 1912, which is Licensed under this Act to conduct banking business;

"banking business" means:

(i) the business of receiving funds from the public through the acceptance of money, deposits of money payable upon demand or after a fixed period or after notice or any similar operation through the periodic sale or placement of bonds, certificates, notes or other securities and the use of such funds either in whole or in part for loans, advances, investments or any other operation authorized by law or customary banking practice, for the account and at the risk of the person doing such business;

(ii) any orb-*- activity recognized by the Bank as customary banking practice which a tinancial institution may be authorized by the Bank to engage in; •calendar year" means the period form 1st January to 31st December; "credit institution" means any financial institution other than a bank; "conglomerate" means a conglomerate as defined in Section 15(2); "Court" means the High Court;

"director" includes any person, by whatever title he may be referred to, empower substantially the same functions in relation to the direction of a financial institution carried out by a director of a company as defined in the Companies Act, 1912; "financial institution" means any person licensed under this Act to any on banking business;

"financial year" means any continuous twelve month period designated by a financial institution as its accounting year;

"foreign financial institution" means any financial institution, incorporated or otherwise, other than a local financial institution, doing business in Swaziland, whether such business is banking or other business;

"Licensed": (a) in relation to an agent, means Licensed under Section 17 of this Act; (b) in relation to a financial institution, means Licensed under Section 6 or 17 of this Act; "local financial institution" means a financial institution established under the laws of Swaziland; "Minister" means the Minister responsible for Finance;

"other financial institution" means any institution which may be Licensed by or otherwise subject to the supervision and regulation of the Bank.

73 "place of business" means any branch or office of a financial institution in Swaziland, including a mobile agency, open to the public for the transaction of banking business;

"principal officer" means the Chief Executive Officer or other person in Swaziland, by whatever title he may be referred to responsible for the management of the affairs of a Licensed financial institution;

"public in Swaziland" includes the Government of Swaziland, the Bank, any statutory body and every licensed financial institution;

"records" means any documents or information used in the ordinary course of the business of banks or financial institutions, whether in written form or kept on microfilm, magnetic tape or any other form of mechanical or electronic medium.

"unsecured" in relation to loans, advances or credit facilities means loans, advances, or credit facilities granted without special security; or in the case of loans, advances or credit facilities granted against special security, any part of such loans, advances or credit facilities which at any given time exceeds the market value of the assets comprising the security given, or which exceeds the valuation approved by the Bank whenever it deems that no market value exists for such assets.

Non-applicability of the Act. 3. (1) This Act shall not apply to: (a) a building society within the meaning assigned to it in the Building Societies Act, 1962;

(b) a co-operative society within the meaning assigned to it in the Co-operative Societies Act, 2003; or

(2) With the approval of the Minister, the Bank may after consultation with the primary supervisor of the institutions mentioned in subsection (1) above, make certain specified provisions of this Act applicable to such institutions.

Exemptions.

4. (1) The Bank may, after consultation with the Minister, by notice published in the Gazette, exempt any class of credit institutions from all or part of the provisions of Sections 19, 20(1 )(b) and 24, for such period and under such conditions as the Bank may determine, whenever such exemptions may be deemed by it to be in the public interest:

Provided that such exemptions shall not be granted for periods exceeding two years, which period may however be extended in appropriate circumstances. PARTII LICENSES Prohibition Against Carrying-on of Business by a Financial Institution without a License.

5. (1) No business shall be transacted, either in Swaziland by a foreign financial institution or agent or in Swaziland or abroad by a local financial institution, unless such financial institution has been Licensed in terms of this Act to carry on such business;

(2) A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine of not less than one hundred thousand Emalangeni (El00,000) and an additional fine of not less than twenty-five thousand Emalangeni (E25,000) in respect of each day on which the contravention continues.

Application for License to carry on Banking Business.

6. (1) No person shall carry on banking business in Swaziland unless he has been granted a license by the Bank.

(2) An application to be licensed shall be made to the Bank in the form prescribed and shall be accompanied by:

74 (a) an authenticated copy of the memorandum and articles of association, or, in case of a foreign financial institution, such similar documents regulating its affairs or such other documents as the Bank may require to establish the manner of control and regulation of such institution, and, in the case of a public company, a copy of its prospectus or similar document required under any law relating to companies, and the name, nationality, and address of every promoter;

(b) a statement of the address of its head office, and the name, nationality and address of its chairperson, of every director or partner, as the case may be, and of its principal officer;

(d) full particulars of the business it proposes to carry on, and of the manner in which it proposes to carry on such business and a business plan covering the first three years of operation; (e) the location of the principal place and other places of business in Swaziland and, in the case of a local financial institution operating outside Swaziland, any place where it proposes to carry on its activities, and in the case of a mobile agency, the area to be served by any mobile agency;

(f) evidence, in the case of a foreign financial institution, that it is subject to comprehensive supervision or regulation on a consolidated basis by the appropriate authorities in its home country; and

(g) any other information as the Bank may require.

(3) The application and every document submitted in accordance with subsection (1) shall be signed by the principal officer of the applicant.

(4) The applicant shall, when submitting the application:

(a) pay to the Bank an investigation fee to be prescribed by the Bank by notice in the Gazette; and (b) deposit with the Bank an annual fee for the first year: Provided that such deposit shall be refunded to the applicant if the License is refused.

(5) In considering an application for a License, the Bank shall conduct such investigation as may be deemed necessary to ascertain the: (a) validity of the documents submitted under subsection (2); (b) financial status and history of the applicant; (c) character and experience of its managers; (d) adequacy of its capital structure; (e) convenience and needs of the community it intends to serve; (f) earning prospects afforded by the area primarily to be served; and (g) public interest. (6) No person shall be granted a License unless the requirements specified in Section 20 are fulfilled.

(7) Within ninety days after the receipt of an application, or if further information has been required, after the receipt of such information, the Bank shall, after consultation with the Minister, notify the applicant in writing either that it grants the License or refuses to grant the License.

(8) In granting a License, the Bank may impose conditions to be satisfied by the licensee, including a condition that the licensee carry on business at a designated place or places, provide or refrain from providing specified services or facilities, or any other conditions which the Bank may consider appropriate.

(9) In the case of a foreign financial institution the Bank shall establish contact with the parent supervisory authority of the institution in order to ascertain that the institution is adequately supervised on a consolidated basis and notwithstanding the provisions of subsection (7), the Bank shall require as a condition that there be filed with it before commencement of operations:

75 (a) a duly executed instrument in writing, by its term of indefinite duration and irrevocable, appointing the Bank its true and lawful agent, upon whom all process in any action or proceedings against it and a cause of action arising out of a transaction with any of its places of business in Swaziland may be served with the same force and effect as if it were established in Swaziland and had been lawfully served with process therein;

(b) a written certificate of designation, which may be changed from time to time thereafter by the filing of a new certificate of designation, specifying the name and address of the officer, agent, or other person in Swaziland:

(i) to whom such process shall be forwarded by the Bank;

(ii) upon whom any person not served upon by the Bank under paragraph (a) may be served;

(c) a written certificate that the appropriate authorities in the home country of the foreign financial institution have consented to the proposed establishment in Swaziland of the facility.

(10)In refusing to grant a License, the Bank shall furnish to the applicant a written statement of the reasons for its decision.

(11) Every Licensed financial institution shall pay annually to the Bank for the account of the Consolidated Fund the prescribed annual fee. Financial Institutions deemed to be Licensed under this Act. 7. All financial institutions Licensed in terms of this Act shall be announced through the Gazette. Investigation of Persons Suspected of Carrying on Business without a License. 8. (1) If the Bank has reason to believe that any person required to be Licensed as a financial institution, or as agent within the meaning of Section 17, is carrying on banking business it shall in order to ascertain whether such person is carrying on banking business without a License:

(a) serve that person with an order to cease and desist and that person shall accordingly comply;

(b) direct that person by notice in writing to submit to it, within a period stated in the notice or within such further period as it may allow, any document or information concerning such business.

(2) If the Bank determines that a person is carrying on banking business contrary to this Act, it shall immediately seize and take possession of any funds and assets of the person, whether acquired as a result of carrying on such unauthorized banking business or deposit taking activity or personal property, appoint a liquidator to commence proceedings leading to compulsory liquidation in conformity with the procedures as set out in the Schedule to this Act.

(3) Any person who contravenes the provisions of this Section commits an offence and shall be liable on conviction to a fine of not more than two hundred and fifty thousand Emalangeni (E250,000) or imprisonment for not more than one year or both.

(4) Nothing in subsection (3) shall exempt any person from further criminal liability arising out of any contravention of this Act or any other law.

Authority to take Deposits.

9. (1) The Minister may, in consultation with the Bank, define, "deposit taking business" by regulation published in the Gazette.

(2) No person shall, without the prior written authorization of the Bank, carry on deposit-taking business in Swaziland.

(3) Where the Bank has reason to believe that a person is carrying on deposit-taking business without its prior written authorization, it may call for such information from that person as it may require; and such person snail be subject to the provisions of Section 8:

76 (4) A person acting in contravention of this Section shall, in addition to the penalties specified in Section 8, be liable to a minimum administrative penalty imposed by the Bank of Twenty-Five Thousand Emalangeni (E25.000) for each day of such unauthorized deposit-taking business.

Use of word "bank" in title.

10. (1) No person other than a Licensed financial institution, or its agent, shall, without the prior written consent of the Bank, use the word "bank" or any of its derivatives in any language, or any other word indicating the transaction of banking business, in the name, description or title under which such person is carrying on business in Swaziland, or make or continue to make any representation to such effect in any notice, advertisement or in any other manner whatsoever for the purpose of transacting business in Swaziland.

(2) A person who contravenes subsection (1) commits an offence and shall be liable on conviction to a fine of not less than two hundred and fifty thousand Emalangeni (E250.000) or imprisonment for one year or both.

(3) Nothing in subsection (1) shall prevent a person from using the word "bank" or any of its derivatives, if it is:

(a) for the sole purpose of establishing a company to the end of applying for a License under Section 6, in which case the term "in-organization" shall be included as part of the name of the bank until such time as it is Licensed by die Bank; or

(b) included in the title of a bank staff association or a bank pension or provident scheme or fund or similar organization.

Certain words not to be used in name of Financial Institution.

11. (1) No financial institution shall be granted or continue to hold a License under a name which closely resembles the name of an existing institution or which would be likely, in the opinion of the Bank, to mislead the public.

(2) Except with the written approval of the King, the Bank shall not grant a License to any financial institution the name of which contains the words "Royal" or "King of Swaziland" or any word which suggests Royal patronage or support in any language as part of its name.

(3) Except with the written consent of the Minister, the Bank shall not grant a License to any financial institution the name of which contains the word "Government" or any word which suggests governmental support in any language as part of its name.

(4) Except with the written consent of the Bank, no financial institution shall use or refer to itself by a name other than the name under which it is Licensed.

Local Financial Institutions to be Incorporated.

12. (1) No local financial institution shall be granted a License in terms of this Act unless it is registered as a company under the Companies Act No. 7 of 1912.

(2) No holder of shares issued by a local financial institution shall have voting rights in respect of such shares unless such shares are registered under his name in the register to be maintained by the institution.

Licensed Persons to Display name and License under Act.

13. (1) A person licensed under the Act shall display conspicuously in each of its places of business a copy of the License.

(2) No financial institution shall open a new place of business in Swaziland, or change the location of, or close, an existing place of business in Swaziland without the prior written consent of the Bank:

77 Provided that the Bank shall not grant such consent unless it is satisfied that the new place of business, or the financial institution as relocated, will continue to meet the provisions of Section 6.

(3) No local financial institution shall open a new place of business outside Swaziland, or change the location of, or close, an existing place of business outside Swaziland without the prior written consent of the Bank.

General Prohibitions.

14. (1) No person may, without the prior written approval of the Bank, acquire by transfer either directly or indirectly any interest in the capital stock of a local financial institution which would confer upon him a voting share exceeding twenty percent of the total outstanding stock, and, in considering its approval, the Bank may call for such information as it may require.

(2) No local financial institution shall, without the prior written approval of the Bank:

(a) enter into a merger or consolidation;

(b) transfer the whole or any part of its assets in Swaziland other than in the ordinary course of its business;

(d) alter its name as set out in its License; or

(e) amend its memorandum or articles of association.

(3) No foreign financial institution which is Licensed under this Act shall, without the prior written approval of the Bank:

(a) transfer the whole or any part of its assets in Swaziland other than in the ordinary course of its business;

(b) effect a reduction of its assigned capital in Swaziland; or

(4) An application for the approval of the Bank in terms of this section shall be in writing and shall be accompanied by any information or document which the Bank may deem necessary including:

(a) a statement of the nature of the transfer, merger or consolidation;

(b) a copy of the proposed agreement under which the transfer, merger or consolidation is to be effected; and

Formation of Conglomerates.

15. (1) No person licensed to carry on banking business shall without the prior written authorization of the Bank form or participate in a conglomerate.

(2) For the purpose of this Section a conglomerate may consist of: (a) a group of financial institutions;

(b) a group whose members include a financial institution, and insurers and/or securities dealers (whether foreign or local, separately incorporated, registered in terms of any applicable legislation, or carrying on as a regular feature of its business the business of insurance or dealing in securities); or

(c) a group whose members include a financial institution, any member referred to in sub-paragraph (b), and any other undertaking whose main business cannot be classified as falling within financial services or related sectors, of which one of its members controls another within the group; or such control belongs to one or more persons or members who act in concert to exercise control over two or more members of the group;

78 (3) For purposes of subsection 2(c), control shall exist when a member, person, association of members or persons, or an entity:

(a) directly or indirectly, or acting through one or more intermediaries owns, directs, or has the power to vote twenty-five percent or more of any class of voting securities or shares of a member of the conglomerate;

(b) directs in any manner the election of a majority of the directors of a member of the conglomerate; or

(c) directly or indirectly exercise a controlling influence over the management or policies of a member of the conglomerate.

(4) In granting such authorization the Bank may:

(a) limit or order the reduction of the percentage shareholding or other ownership interests by any person or any of the members of the conglomerate in the financial institution to a maximum of twenty-four percent;

(b) limit the aggregate amount of existing and potential exposure to the capital and reserves of the financial institution:

(i) to ten percent in respect of any one member of the conglomerate; or

(ii) to twenty percent in respect of two or more members of the conglomerate;

(c) direct that certain categories of assets that would be classified in the ordinary course of credit evaluation and banking practice as doubtful or low-quality assets, shall not be acceptable as collateral security for transactions contemplated in subsection (5);

(d) direct that any transaction resulting in an exposure to the financial institution, as contemplated in subsection (5), shall be on terms and conditions that would have been offered to unrelated third parties, and that are consistent with safe and sound banking practices; or

(e) impose any terms and conditions which it may deem desirable or in the interest of sound prudential practice and a stable financial system. (4) For purposes of subsection (4)(b) "exposure" in relation to such member or members, means: (a) a loan or extension of credit to a member or members; (b) a purchase of, or investment in, shares or other ownership interests of a member or members;

(d) the acceptance of shares or other ownership interests issued by a member or members as collateral security for a loin or extension of credit to such member or members; or

(e) the issue of a guarantee, acceptance, promissory note, or letter of credit, including an endorsement of any such instrument, on behalf of a member or members.

(6) The Bank may, by notice published in the gazette, make Bylaws to ensure prudential rules, reporting and auditing of each member of the conglomerate and the conglomerate as a whole.

(7) The Bylaws referred to in subsection (6) may differentiate between the different classes of conglomerates described in subsection (2) of this Section. Revocation of License of a Financial Institution. 16. (1) The Bank may revoke the License of any financial institution if the holder: (a) fails to commence operations within a period of one year following the grant of the License;

(b) exceeds the terms of his License or fails to comply with any conditions imposed under Section 6 or 17, or with any measures required by the Bank under Section 42; (c) ceases to carry on the business for which he is Licensed; or (d) is in breach of any other of the provisions of this Act. 79 (2) Before revoking the License of any financial institution, the Bank shall consult with the Minister and give such institution notice of its intentions to do so, and shall afford it a reasonable opportunity to show cause why such License should not be revoked;

Provided that no License shall be revoked earlier than twenty-eight days after the notice of intention is served on the financial institution.

(3) The Bank may obtain a temporary injunction upon application to the Court for the suspension of any part or all of the business being conducted by such institution after the notice of intention has been served upon it.

(4) If the Bank has revoked a License, it shall as soon as possible publish a notice of the revocation in the Gazette and in a newspaper of general circulation in the country and shall in addition cause a sufficiently large enough notice to be posted in a conspicuous place in each place of business of the financial institution.

Licensing of Agents and Annual Fees.

17. (1) Any person, other than a Licensed financial institution, proposing to act as agent of a financial institution not Licensed in Swaziland, who represents such institution, or undertakes any activity on its behalf, in Swaziland, other than in the course of legal proceedings, shall, before engaging in such representation or activity, apply to the Bank for a License under this Section.

(2) An application for a License in terms of subsection (1) shall be in writing and shall contain full particulars of: (a) his authority to act as agent; (b) the business he proposes to carry on; and (c) the manner in which, and the places where, he proposes to carry on such business.

(3) The Licensee shall, upon the granting or renewal of his License, pay to the Bank for the account of the Consolidated Fund the prescribed annual fee for agents which may from time to time be prescribed by the Minister by notice published in the Gazette.

(4) The License shall be granted for a period not exceeding one year, but may be renewed upon application to the Bank made*prior to the expiry of the period for which the License was granted:

Provided that the Bank may refuse to grant or renew such License on good cause shown.

(5) In granting or renewing a License, the Bank may impose conditions to be satisfied by its holder including limitations on his activities.

(6) The License may be revoked by the Bank in the event that its holder fails to comply with the terms and conditions of the License, or comes under the provisions of Section 49.

(7) Before revoking any License issued under this Section, the Bank shall give the holder notice of its intention to do so, and shall afford him a reasonable opportunity to show cause why such License should not be revoked:

Provided that no License shall be revoked earlier than twenty-eight days after the notice of intention is served on the holder.

(8) The Bank may obtain a temporary injunction upon application to the High Court for the suspension of any part or all of the business being conducted by the holder after the notice of intention has been served upon him.

(9) If the Bank has revoked a License in terms of this Section, it shall as soon as possible publish a notice of the revocation in the Gazette and in a newspaper of general circulation in Swaziland.

(10)Any person acting as an agent within the meaning of this Section without a valid License therefore commits an offence and shall be liable on conviction to a fine of Fifty Thousand Emalangeni (E50.000) and an additional fine of not less than Twenty-Five Thousand Emalangeni (E25.000) in respect of each day on which the contravention continues.

Disclosable Information.

18. (1) With respect to any Licensed financial institution or agent, the Bank shall disclose to any person upon request: 80 (a) the nature of the License;

(b) any terms, conditions and limitations attached to such License;

(d) the name of the person upon whom process may be served in lieu of the holder of such License, where such person has been named in a certificate of designation filed with the Bank.

(2) For the purposes of this section "certificate of designation" means a certificate filed with the Bank by the License holder appointing a person upon whom process may be served in lieu of the License holder. PART III FINANCIAL REQUIREMENTS AND LIMITATIONS

Capital and Reserve Account.

19. (1) Every financial institution shall at all times maintain unimpaired capital, either paid-up if it is a local financial institution, or assigned if it is a foreign financial institution, at least equal to the minimum amount specified in Section 20.

(2) The assigned capital of a foreign financial institution shall serve the same purposes under this Act as the paid-up capital of a local financial institution.

(3) Every financial institution shall maintain a Reserve Account and, before any dividend is declared or any profit is transferred to the head office or elsewhere, shall transfer to such Account out of the net profits of each year, after due provision has been made for taxation, a sum equal to not less than the minimum amount specified in Section 20.

(4) The Reserve Account shall neither be reduced nor impaired:

Provided that the impairment of the Reserve Account may be permitted when it is the only means of preventing an impairment of the capital, in which case the Bank shall be notified within thirty days of the amount of such impairment.

(5) No financial institution shall declare, credit or pay any dividend or make any other transfer from profits if there is an impairment of the paid-up or assigned capital or of the minimum required balance in its Reserve Account.

Amount of Capital and Reserve Account. 20. (1) The following requirements shall apply in respect of a financial institution: (a) operating as a bank:

(i) its minimum required capital shall be not less than the greater of the amount prescribed by the Bank by way of start-up capital, or five percent of its liabilities to the public in Swaziland in terms of the most recent balance sheet prepared in accordance with Section 35;

(ii) it shall transfer each year to its Reserve Account a sum equal to not less than ten percent of its net profits until the balance in the Reserve Account is equal to its minimum required capital;

(iii) the sum of capital and reserve accounts together shall not be less than eight percent of the sum of its risk weighted assets computed in the manner prescribed by the Bank from time to time by Notice in the Gazette:

Provided further that any bank required by a change in Bylaws made under this Section to increase its capital shall be afforded a reasonable period of time being not less than twelve months in which to comply therewith;

(b) operating as a credit institution or other financial institution:

(i) its minimum required capital shall be not less than the amount prescribed by Bylaws in respect of the appropriate class of institutions:

81 Provided that such prescription shall not be inferior to the greater of the amount prescribed by the Bank by way of start-up capital or five percent of its liabilities to the public in Swaziland in terms of the most recent balance sheet prepared in accordance with Section 35; and

Provided further that any credit institution or other financial institution required by a change in Bylaws made under this Section to augment its capital shall be afforded a reasonable period of time, being not less than twelve months, in which to comply therewith;

(ii) it shall transfer each year to its Reserve Account a sum equal to not less than twenty-five percent of its net profits until the balance in such Reserve Account is equal to its minimum required capital:

Provided that the Bank may, by issuing Bylaws, increase the percentages specified in paragraphs (a)(i) and (b)(i).

(2) Where the minimum capital of a financial institution, prescribed in reference to its liabilities, exceeds the amount of its unimpaired capital, such institution may, provisionally and subject to the approval of the Bank for such period as it may approve, include in the computation of its capital any unimpaired balance in its reserve account. (3) Where the sum of capital and reserve accounts of a bank, falls below eight percent of the sum of its computed risk-weighted assets (or such higher percentage as may have been prescribed by the Bank under subsection (1)), such institution may, on application to the Bank, be granted a reasonable time not exceeding one year for compliance on the basis of a plan rectifying the deficiency.

Provisions to be made for Certain Items.

21. In making the calculations necessary to ascertain that a financial institution has complied with the requirements of Sections 19 and 20:

(a) provisions shall be made by a financial institution to the satisfaction of the Bank for the following items:

(i) depreciation of assets and bad or doubtful debts (to be calculated at least once in each calendar quarter) and including accumulated depreciation and bad debts not yet written off;

(ii) operating and accumulated losses;

(iii) preliminary expenses, representing expenses relating to organisation or extension or the purchase of business or goodwill, and including under-writing commission;

(iv)the value of any assets lodged or pledged to secure liabilities incurred under any law if all the liabilities (including contingent liabilities) so secured are not included in the calculation and if the effect of such lodging or pledging is that such assets are not available for the purpose of meeting the liabilities of the institution to the public;

(v) such other items as the Bank may prescribe in Bylaws;

(b) capital, paid-up or assigned as the case may be, liabilities, and risk-weighted assets shall be of such kinds and computed in such manner, as the Bank may prescribe in Bylaws

Prescribed Investments to be Maintained.

22. The Bank may from time to time, by notice published in the Gazette, prescribe that every financial institution of a given class or classes shall maintain in Swaziland specified investments of an amount to be determined as a percentage of its liabilities to the public in Swaziland as shown in its last preceding monthly statement furnished to the Bank under Section 36:

Provided that: (a) no such prescription shall require the total amount of such specified investments to exceed five percent of such liabilities; and

(b) every such prescription shall afford every institution required to maintain such specified investments a reasonable period, not less than three months, in which to comply

82 Minimum Liquid Assets to be Maintained.

23. (1) The Bank may from time to time, by notice published in the Gazette prescribe that every financial institution of a given class or classes shall maintain liquid assets amounting to not less than a prescribed percentage or percentages, not exceeding twenty-five percent, of the total, or specified categories, of its liabilities to the public in Swaziland as shown in the last preceding monthly statement furnished to the Bank under Section 36:

Provided that no financial institution shall be required without prior approval of the Minister, to maintain liquid assets in excess of thirty percent of such total liabilities to the public in Swaziland.

(2) The distribution of amounts between the various types of liquid assets required to be held under this Section shall be made at the discretion of each financial institution:

Provided that the Bank may, by notice published in the Gazette and with the approval of the Minister, prescribe the distribution of amounts between the types of liquid assets required to be held under this Section.

(3) For the purpose of this Section, "liquid assets" shall consist of freely transferable assets, unencumbered by any charge or lien whatsoever, of the following classes:

(a) notes and coins that are legal tender in Swaziland and net balances held with the Bank;

(b) net balances withdrawable on demand and money at call at any financial institution in Swaziland;

(d) securities issued by the Bank and maturing within one hundred and eighty days;

(e) net balances withdrawable on demand, and money at call or at up to thirty-one days notice at such financial institutions, denominated in such currencies and located in such countries and available in accordance with such terms, as the Bank may approve;

(f) negotiable instruments of such type as the Bank may approve bearing at least two good signatures, payable within a period of one hundred and eighty-six days and drawn on such places, and denominated in such currencies, as the Bank may approve;

(g) treasury notes or bills issued by the Government of such countries, and denominated in such currencies, as the Bank may approve, and maturing within three hundred and seventy days; or

(h) such other assets as the Bank, with the approval of the Minister, may, by notice published in the Gazette, approve.

Limitations on Specified Operations and Activities.

24. (1) No financial institution shall directly or indirectly:

(a) grant to any person or permit to be outstanding any loan, advance or credit facility, or give any financial guarantee or incur any other liability on behalf of that person, such that the total value of the loans, advances or credit facilities to, and financial guarantees or other liabilities on behalf of, that person is at any time more than twenty- five percent of the unimpaired paid-up or assigned capital and unimpaired balance in the Reserve Account of the financial institution:

Provided that the limitation upon such transactions shall not apply if they:

(i) represent loans, advances or credit facilities to, or guaranteed in writing both as to principal and interest by, the Government of Swaziland;

(ii) represent such loans, advances or credit facilities to, or guaranteed in writing both as to principal and interest by, such foreign governments, as the Bank may specify for the purposes of this Section;

83 (iii) are fully secured by cash and held in a segregated deposit account by the lending financial institution, or portions thereof.

(b) grant any loans, advances or credit facilities against the security of its own shares or, those of any other Licensed financial institutions;

(c) grant or permit to be outstanding unsecured loans, advances or credit facilities of an aggregate amount in excess of fifty thousand Emalangeni (E50,000):

(i) to its directors whether such loans, advances or facilities are granted to them jointly or severally;

(ii) to any firm, partnership, syndicate, association, company or other body of persons incorporate or unincorporate in which it or any one or more of its directors is directly or indirectly interested as owner, shareholder, director, partner, manager, agent or member; or

(iii) to any individual, firm, partnership, syndicate, association, company or other body of persons incorporate or unincorporate of whom or of which it or any one or more of its directors is directly or indirectly a guarantor;

(d) grant or permit to be outstanding to any officer or employee unsecured loans, advances or credit facilities which in the aggregate amount exceed one year's emoluments of such officer or employee;

(e) engage, whether on its own account or on a commission basis, in the wholesale or retail trade, including the import or export trade, except insofar as may be necessary in exceptional circumstances with the prior written approval of the Bank in the course of banking business or in the course of the satisfaction of debts due to it; or

(f) acquire or hold any part of the share capital or any financial, commercial, agricultural, industrial or other undertaking except such shareholdings as a financial institution may acquire in the course of the satisfaction of debts due to it, which shareholdings shall, however, be disposed of at the earliest suitable moment but not later than three years from the date of its original acquisition:

Provided that this paragraph shall not prevent the purchase and sale of shares of stock for trust account or upon the order and for the account of a customer without recourse;

Provided further that this paragraph shall not apply:

(i) in respect of any shareholding approved by the Bank in any corporation established for the purpose of insuring deposits or of promoting the development of a money market or securities market or payments system in Swaziland or of improving the financial mechanism for the financing of economic development; or

(ii) to any shareholdings in other undertakings the aggregate value of which does not at any time exceed twenty- five percent of the sum of its unimpaired paid-up or assigned capital and unimpaired balance in its Reserve Account:

Provided, however, that the acquisition of any voting shares of a local financial institution shall be subject to the prior written approval of the Bank;

(2) If in the application of the limitation of subsection (l)(a) the Bank determines that the interests of a group of two or more persons are so interrelated that they should be considered as a unit, the total indebtedness of such group shall be combined and deemed to be in respect of a single person.

(3) The Bank shall issue Bylaws to ensure prudential rules for the aggregation and attribution of loans and credit facilities for the purpose of ensuring compliance with subsection (1).

(4) A financial institution shall report all credit exposures in excess of ten percent of its unimpaired paid-up or assigned capital and unimpaired balance in the Reserve Account to the Bank on a quarterly basis and may not incur such exposure to an extent that in total exceeds eight hundred percent of that calculation.

84 Loans and Advances Secured by Hypothec.

25. (1) Subject to this Section, a financial institution may, on completion of a deed of hypothecation, secure any loans or advances by a hypothec of crops or other agricultural or external produce, whether attached to the soil or not, felled timber, animals, fodder, industrial and fishing materials, rolling stock, boats, fishing tackle or nets, raw materials, equipment, machinery, stock-in-trade and generally all produce of labour and things necessarily used in connection with production, or other movable property (including incorporeal rights) of whatsoever kind of description, of which the borrower is the owner and in respect whereof he has the right of use and disposal, whether or not as on the date such deed of hypothecation the property offered as security is in existence or has been acquired by the borrower. (2) Any deed of hypothecation entered into under this Section shall: (a) include:

(i) a statement that the institution has, through its servant or agent, explained to the borrower the effect of making such deed and that the borrower understands the explanation; (ii) the amount of the loan or advance secured by the hypothec; (iii)a description of the property offered as security; (iv)such matters as may be prescribed by legislation.

(b) be lodged by the financial institution with the Registrar of Deeds within thirty days of its execution and thereafter registered in the register of deeds of hypothecation; and

(c) be endorsed by the signature of an officer who has been duly authorized thereto, either generally or specially, by the institution concerned.

(4) A deed of hypothecation entered into under this Section shall be of no effect unless and until it has been registered in accordance with subsection (2).

(5) Immediately upon payment by the financial institution of the loan or advance or any part thereof to or on behalf of the borrower, and subject to subsection (3), notwithstanding any other law, all property hypothecated and progeny or produce thereof shall be deemed to be pledged in favour of the institution for the amount owing in respect of such loan or advance, including interest and costs, as fully and effectually as if it had been pledged by delivery to such institution.

(6) The security created under subsection (4) shall not be extinguished by any delivery to another person of the property without the written consent of the financial institution:

Provided that this subsection shall not apply to:

(a) any delivery by or on behalf of the borrower to another person in good faith if the value of the property so delivered does not exceed fifty Emalangeni (E50); or

(b) any subsequent delivery to another person for value in good faith, even if the person so delivering the property has acquired it in bad faith from the borrower.

(7) The financial institution may at any time, upon such conditions as it deems fit, grant permission in writing to the borrower to dispose of the property which has been hypothecated in terms of this Section or to substitute any other property of the same description therefor, and any property so substituted shall be deemed to have been validly hypothecated in terms of this Section:

Provided that the financial institution shall cause the details of such substitution to be noted against the deed of hypothecation lodged with the Registrar of Deeds in terms of subsection (2) hereof and until so noted, such substitution shall be of no effect as against persons other than the borrower.

(8) Any movable property already hypothecated by any registered notarial bond shall not be hypothecated under this Section, except with the consent in writing of the holder of such bond.

(9) Any borrower who, without the prior written authority of the financial institution, disposes of, destroys or consumes any property hypothecated under this Section or removes any property from the land where it is to be kept by agreement with the financial institution, commits an offence and shall be liable on conviction to a fine of not less than one thousand Emalangeni (El ,000) or imprisonment for one year or both:

85 Provided that it shall be a good defence in any prosecution under this subsection if the accused establishes that the amounts secured under the deed of hypothecation were fully paid by or on his behalf to the financial institution concerned immediately after the disposal, destruction, consumption or removal as the case may be.

(10)If, at a trial in respect of a contravention of subsection (8), it is proved that the accused failed, on the demand of any person designated by the institution for such purpose, to produce the property hypothecated or any part thereof, the accused shall be presumed to have disposed of, destroyed, consumed or removed the property in question as the case may be according to the charge, unless the contrary is proved.

(11)Every financial institution shall maintain a register of all deeds of hypothecation entered into in terms of this Section at the principal place of business and such register shall be open for inspection by members of the public without charge during normal hours of business of the institution.

(12)Upon recovery or repayment of any loan or advance secured by a hypothec together with interest thereon to the date of such repayment and any costs which may have been incurred in connection with such loan or advance and recoverable in terms thereof or of any law, the institution shall issue a receipt for such moneys and notify the Registrar of Deeds who shall forthwith cancel the entry in the register of deeds of hypothecation.

Foreclosure of Hypothec.

26. (1) Any deed of hypothecation lodged with the Registrar of Deeds in terms of Section 25 shall be deemed to be a liquid document for the purposes of any application to any court of competent jurisdiction for summary judgement or provisional sentence.

(2) In the case of loans secured by hypothec, upon any event specified in a hypothec entered into in terms of Section 25 permitting the seizure of any property subject thereto, a financial institution may file with the clerk or registrar of any court of competent jurisdiction a certified statement by an authorized employee of the financial institution on oath as correct, setting forth the said event and describing the property liable to seizure and annexing thereto a copy of the relevant deed of hypothec.

(3) A copy of the statement referred to in subsection (2) shall be posted by the financial institution to the borrower simultaneously with it being filed with the clerk or registrar of the court.

(4) A statement shall on being filed in terms of subsection (2) have all the effects of, and any proceedings may be taken thereon, as if it were, a civil judgement lawfully given in that court in favour of a financial institution authorizing the seizure of such property.

(5) No financial institution which has seized property in terms of subsection (4) shall dispose of such property without having obtained a court order from a court of competent jurisdiction in which the statement referred to in subsection (2) was filed.

Allocation of Proceeds.

27. (1) Notwithstanding any other law, the proceeds of a sale in execution or under the judgment of a court of any property hypothecated under Section 25 shall be applied, firstly, towards any costs or expenses incidental to the taking of possession and sale of such property, and, secondly, to the discharge of the loan or advance or balance thereof outstanding and any interest thereon to the date of receipt of proceeds of sale, and thereafter any surplus remaining, shall be repaid to the borrower or his successor in title or assigns, as the case may be.

(2) For the purposes of this Section the expression "his successor in title" includes his curator bonis and any executor, administrator, trustee or liquidator of his estate.

Hypothecation Deeds to be Prepared by the Financial Institution.

28. (1) A deed of hypothecation to secure a debt to a financial institution and a deed evidencing the discharge of any debt so secured may be prepared by the financial institution and the borrower shall pay such charges in connection therewith as may be approved by the Bank from time to time.

86 (2) Notwithstanding any regulations made under the Deeds Registry Act No. 37 of 1968 or any other law, all such documents prepared by a financial institution in accordance with subsection (1) which are registerable in the Deeds Office shall be registerable without it being necessary for any person to appear before the Registrar of Deeds.

(3) A deed of hypothecation lodged with the Registrar of Deeds in terms of Section 25 shall be substantially in the form prescribed by regulation, but may contain such terms and conditions as are not inconsistent with this or any other law. PART IV AUDIT, INFORMATION AND EXAMINATION

Appointment and Duties of Auditors

29. (1) Every financial institution shall annually appoint an independent auditor, satisfactory to the Bank, whose duty shall be to make a report to the shareholders of a local financial institution or to the head office of a foreign financial institution upon the annual balance sheet and profit and loss account, and in every such report he shall state whether in his opinion the balance sheet and profit and loss account have been prepared in accordance with standard banking practice, whether they fairly present the financial institution's affairs and, if the auditor has called for explanations or information from the directors, officers or agents of the financial institution, whether such are satisfactory.

(2) The report of the auditor shall be read together with the report of the board of management of the financial institution at the annual meeting of shareholders of each local financial institution and shall be transmitted to the head office of each foreign financial institution, and a copy thereof sent to the Bank.

(3) If a financial institution fails to appoint an auditor in accordance with subsection (1), or the Bank is not satisfied with the report of the auditor appointed by the financial institution, the Bank shall have the power to appoint an auditor and his remuneration shall be paid by the financial institution.

(4) No person having any interest in a financial institution otherwise than as a depositor and no officer, employee or agent of a financial institution shall be eligible for appointment as an auditor to such financial institution, and any person appointed as an auditor to any financial institution who shall after such appointment acquire such interest or become an officer, employee or agent of such financial institution shall forthwith cease to be such auditor.

(5) If an auditor, in the course of the performance of his duties is satisfied that:

(a) there has been a serious breach of or non-compliance with the provisions of this Act, or Regulations or Bylaws made under this Act, the Central Bank of Swaziland Order No.6 of 1974, or the Companies Act No. 7 of 1912;

(b) a criminal offence involving fraud or other dishonesty has been committed;

(c) losses have been incurred which reduce the paid-up or assigned capital, as the case may be, of the financial institution by twenty-five percent or more;

(d) serious irregularities have occurred, including those that jeopardize the security of depositors and creditors; or

(e) he is unable to confirm that the claims of depositors and creditors are still covered by the assets,

he shall immediately report the matter to the Bank.

(5) The Bank may, if it considers it necessary, from time to time, being at least once a year, arrange trilateral meetings with each financial institution and its auditors, to discuss matters relevant to the Bank's supervisory responsibilities which have arisen in the course of the statutory audit of that financial institution, including relevant aspects of the financial institution's business, its accounting and internal control systems, and its annual balance sheet and profit and loss accounts.

(6) The Bank may, if it considers it desirable or necessary in the interests of depositors, from time to time arrange bilateral meetings with auditors of financial institutions.

87 (7) No duty of confidentiality to which an auditor of a financial institution may be subject shall be regarded as contravened and no civil, criminal or disciplinary proceeding shall lie against him by reason of his communicating in good faith to the Bank, whether or not in response to a request made by it, any information or opinion which is relevant to the Bank's functions under this Act, or Regulations or Bylaws made under this Act, or the Acts referred to in subsection (5).

Auditor's Right of Access to Books.

30. Every auditor of a financial institution shall have the right of access at all times to such books, accounts, vouchers, and securities of that institution and shall be entitled to require from the officers and agents of that institution such information and explanations as he requires to correctly perform his duties as auditor.

Powers of the Bank in Relation to Auditors.

31. (1) The Bank may impose all or any of the following duties on an auditor in addition to those provided under Section 29:

(a) a duty to submit such additional information in relation to his audit as the Bank considers necessary;

(b) a duty to carry out any other examination or establish any procedure in any particular case;

(d) a duty to submit a report on the financial and accounting systems and risk management controls of the financial institution; or

(e) a duty to certify that the systems of loan classification, provisioning and write-offs prescribed by the Bank are being followed and whether or not suitable measures to counter the possibility of money-laundering have been adopted by the financial institution and are being implemented in accordance with such Bylaws that the Bank may prescribe.

(2) The financial institution shall remunerate the auditor in respect of the discharge by him of all or any of these additional duties.

Audit Committee.

32. (1) Every financial institution shall, by resolution of its board of directors, establish an audit committee that shall regularly report to the board on all matters set forth in Sections 29 and 31.

(2) The audit committee shall include at least three non-executive directors and its meeting shall be attended by (he auditor appointed under Section 29 and by the internal auditor of the financial institution.

(3) The functions of an audit committee shall be to:

(a) assist the board of directors in its evaluation of the adequacy and efficiency of the internal control systems, accounting practices, information systems and auditing/processes applied within the financial institution concerned in the day-to-day management of its business;

(b) facilitate and promote communication, regarding the matters referred to in paragraph (a), risk management or any other related matters between the board of directors and the executive officers of the financial institution concerned and the auditor appointed under Section 29 and the employee charged with the internal auditing of the transactions of the financial institution;

(c) introduce such measures as in the audit committee's opinion may serve to enhance the credibility and objectivity of financial statements and reports prepared with reference to the affairs of the financial institution concerned.

Termination of Appointment of Auditor.

88 33. (1) A financial institution that decides to terminate the services of an auditor appointed under Section 29 before the expiration of the term of appointment must do so by resolution of its board of directors and must give prior written notice to the Bank of its intention to remove or replace the auditor.

(2) If the financial institution is a branch of a foreign financial institution carrying on banking business in Swaziland, it must present the written approval of its head office to the Bank. (3) An auditor appointed under Section 29 shall give written notice to the Bank if that auditor: (a) intends to resign before the expiration of the term of office; or (b) intends not to seek reappointment Financial Records.

34. Every financial institution shall keep such records in Swaziland as are necessary to show clearly and correctly the state of its affairs and to explain its transactions and financial position and to enable the Bank to determine whether the institution has complied with the provisions of this Act, and Regulations and Bylaws made under this Act, and it shall preserve every such record for a period of at least five years as from the date of the last entry therein.

Annual Account.

35. (1) Not later than three months after the expiry of its financial year, every local financial institution, in respect of all business transacted by it, and every foreign financial institution in respect of all business transacted through its places of business in Swaziland, shall prepare, with reference to that year, a balance sheet and a profit and loss account as of the last working day of that year in such form as the Bank may approve, under the joint signatures of the principal officer and the majority of directors of a local financial institution or of the principal officer and the next most senior officer in Swaziland of a foreign financial institution.

(2) The balance sheet and profit and loss account prepared in accordance with subsection (1) shall be audited in terms of Section 29.

(3) Every financial institution shall:

(a) within fourteen days after receipt of the audited balance sheet and profit and loss account in accordance with subsection (1):

(i) send copies thereof to the Bank;

(ii) publish a copy of such balance sheet in the Gazette and in at least one newspaper of general circulation in Swaziland; and

(b) exhibit throughout the year in a conspicuous position in each of its places of business in Swaziland, other than a mobile office, a copy of such balance sheet.

Returns.

36. (1) Every financial institution shall submit to the Bank in duplicate:

(a) not later than the fourteenth day of each month a statement prepared in accordance with written instructions and in such form as the Bank may from time to time prescribe showing the assets and liabilities at the close of business on the last business day of the preceding month; and

(b) not later than fourteen days after the last day of each calendar quarter ending on 31st March, 30th June, 30th September and 31st December, a statement prepared inS65

accordance with written instructions and in such form as the Bank may from time to time prescribe giving an analysis of its assets and liabilities and income and expense at the close of the last business day of the calendar quarter:

89 Provided that the Bank may from time to time call for any additional Information which it may require for the purpose of the administration of this Act from any financial institution about its operations.

(2) A financial institution which contravenes subsection (1) shall be liable to a minimum administrative penalty to be imposed by the Bank of fifty thousand Emalangeni (E50,000) plus an additional fine of twenty-five thousand Emalangeni (E25,000) in respect of each day in which the offence continues.

Failure to Provide Information.

37. (1) The Bank may serve an order to cease and desist upon a financial institution which fails to furnish information as requested by the Bank after the expiry of the time by which the bank had requested such information.

(2) A financial institution which contravenes subsection (1) shall be liable to a minimum administrative penalty to be imposed by the Bank of fifty thousand Emalangeni (E50,000) plus an additional fine of twenty-five thousand Emalangeni (E25.000) in respect of each day in which the offence continues.

Reporting of Suspicious Transactions.

38. (1) No financial institution shall carry out a transaction which it knows or suspects to be related to a serious criminal activity until it reports the information regarding the transaction that indicates such activity to the Bank.

(2) A financial institution shall provide all necessary information relating to the suspicious transaction in accordance with any law authorizing such exchange of information.

(3) A financial institution shall not disclose to any person, other than a court, competent authority, or other person authorized by law, that information has been transmitted to or requested by the authorities, that an investigation is being carried out, or that instructions not to execute a transaction are being carried out.

(4) Where a financial institution provides information that is referred to in subsection (1) and (2) in good faith, the financial institution shall be exempted from liability of any kind for complying with this Section and/or for breach of any restriction on disclosure of information, except as provided in subsection (3).

(5) For the purposes of this Section, "financial institution" includes the employees, directors, officers and owners of a financial institution.

Examinations.

39. (1) The Bank shall cause regular on-site examinations of the operations and affairs of every financial institution, and, where the Bank so specifies, foreign branches, if any, of such financial institutions, to be made by officers of the Bank so appointed to conduct such examinations.

(2) The purpose of an examination under subsection (1) shall be to determine whether:

(a) the financial institution concerned is in a sound financial condition;

(b) the provisions of this Act, Regulations and Bylaws are being complied with by the financial institution; and

(3) For the purpose of determining the condition of a financial institution and its compliance with this Act, Regulations and Bylaws, the Bank may cause an examination to be made of any of the financial institution's affiliates in Swaziland to the same extent that an examination may be made of the financial institution.

(4) The Bank shall also cause such examination to be made where application is made by one-fifth of the total number of depositors, or by any number of depositors holding not less than one-third of the liabilities to the public in Swaziland of such institution:

Provided that the applicants shall submit to the Bank such evidence as it may consider necessary to justify an examination.

Production of Records and Information for Examiner. 90 40. (1) Every financial institution and every affiliate of such institution shall, pursuant to an examination conducted under Section 39, produce for the inspection of any examiner duly authorized by the Bank, at such times and in such places as the examiner may specify (being times and places which, in the opinion of the examiner, are not detrimental to the conduct of the normal daily business of such institution), all books, minutes, accounts, cash, securities, documents and vouchers in their possession or custody, relating to their business and shall supply all information concerning their business as may reasonably be required by such examiner within such time as the examiner may specify.

(2) If any books, minutes, accounts, cash, securities, documents and vouchers are not produced or information not supplied in accordance with subsection (1), the defaulting financial institution or affiliate, or both, as the case may be, commits an offence and shall be liable on conviction to a fine of not less than fifty thousand Emalangeni (E50.000) and an additional fine of not less than twenty-five thousand Emalangeni (E25,000) in respect of every day during which the default continues.

(5) If any information supplied or item produced under subsection (1) is false in any material particular, the financial institution or affiliate, or both, as the case may be, commits an offence and shall be liable on conviction to a fine of not less than five hundred thousand Emalangeni (E500.000).

(6) As soon as possible after the conclusion of an examination, the Bank shall forward a summary of the examiner's report containing its salient points to the head office of the financial institution concerned]

(7) All expenses of, and incidental to, an examination shall be paid by the financial Institution as the Bank may prescribe in Bylaws.

Other Offences.

41. Any director, officer, employee or agent of a financial institution commits an offence and shall be liable on conviction to a fine of one hundred thousand Emalangeni (£100,000), or imprisonment for not less than one year or both, if he:

(a) obstructs the proper performance by an auditor of his duties in accordance with the provisions of this Act, or a lawful examination of such institution by an examiner duly authorized by the Bank;

(b) with intent to deceive makes any false or misleading statement or entry, or omits any statement or entry that should be made, in any book, account, report, or statement of such institution.

Powers After Examination.

42. Without derogating from its powers under Part V of this Act or the Schedule hereto, the Bank may, if, in its opinion, an examination or other information about the institution shows that the financial institution concerned is conducting its business in an unlawful or unsound manner or thatS67 it is otherwise in an unsound condition:

(a) require such institution to take such measures as the Bank may consider necessary to rectify the situation;

(b) appoint a person, who in its opinion has had proper training and experience, to advise the financial institution on measures to be taken to rectify its situation, and shall fix his remuneration which shall be paid by the financial institution.

Confidentiality of Information.

43. (1) Nothing in this Act shall authorize the Minister or the Bank to inquire or cause an inquiry to be made into the affairs of any individual customer of a financial institution.

(2) Except for the purpose of the performance of his duties or the exercise of his functions or when lawfully required to do so by any court under any law, no person appointed under Section 39 to examine the affairs of a financial institution or under Section 42 to advise a financial institution, shall disclose to any person any information relating to the affairs of any financial institution or other person, including any customer of a financial institution, which he has acquired in the performance of his duties or the exercise of his functions.

(3) Every such examiner or adviser shall, before acting in the execution of his office, take and subscribe before a Commissioner of Oaths such oath of fidelity or secrecy as may be prescribed by Bylaws:

91 Provided that this provision shall not apply to a person who has already taken the oath prescribed in Section 20 of the Central Bank of Swaziland Order No.6 of 1974.

(4) Every such examiner or adviser who in contravention of the true intent of the oath of fidelity or secrecy taken by him and without lawful excuse, reveals any matter which has come to his knowledge in his official capacity commits an offence and shall be liable on conviction to a fine of not less than five thousand Emalangeni (E5,000) or imprisonment for two years or both.

(5) Any such examiner or adviser who acts in the execution of his office before he has taken the prescribed oath he commits an offence and liable on conviction to a fine of not less than five hundred Emalangeni (E 500).

Publication of Information.

44. (1) The Bank may publish in whole or in part, in such form and at such time as it may determine, any information or data furnished or collected under this Act:

Provided that no information or data shall be published which might disclose the particular affairs of a financial institution or of a customer of a financial institution unless the consent of the financial institution or customer, as the case may be, has been obtained.

(2) The Bank may communicate confidential information obtained in the course of its examination and its receipt of reports made under Section 38 to the central banks and banking supervisory authorities of other countries.

Annual Report by Bank.

45. The Bank shall annually submit to the Minister a report on all financial institutions and agents licensed under this Act and on all matters relating to such institutions and agents during the year under review, and the Minister shall lay the report before Parliament.

PART V MISCELLANEOUS PROVISIONS Enforcement of Compliance.

46. (1) Whenever the Bank shall find that a financial institution or any of its directors, officers, employees, controlling shareholders, or connected persons has engaged in unsafe or unsound practices in conducting the business of the institution, or has violated any provision of this Act, Regulations, Bylaws, agreement with, or order of the Bank to which the institution is subject, or the Bank has reasonable cause to believe that such actions or violations are about to occur, the Bank may decide to take any one or more of the following courses of action:

(a) issue a written warning incident to or supplementing an examination report;

(b) conclude a written agreement providing for a program of remedial action;

(c) issue an order to cease and desist that requires the institution and/or the responsible person to cease and desist from the actions and violations specified in the order and that may, further, require affirmative action to correct the conditions resulting from any such actions or violations;

(d) issue an order to suspend from office in the institution any person who has engaged in, or is about to engage in, or is otherwise responsible for, such actions or violations and the suspension shall be for an initial period of thirty days which may be extended for similar periods or made permanent;

(e) impose an administrative penalty against the institution and/or any responsible person of not more than twenty- five thousand Emalangeni (E25.000) for each day during which a violation continues of any provision of this Act, Regulations, Bylaws, agreement or order; or

(f) revoke the License of the institution to do banking business.

(2) Any course of action taken in terms of subsection (1) shall be notified in writing to the

92 financial institution or the responsible person, as the case may be, and shall take effect upon receipt and if no complaint is made within eight days, consent to such action shall be presumed.

(3) If the recipient of the notice files a complaint and requests a hearing, the Bank shall provide an opportunity for the recipient to be heard and present arguments within eight days.

(4) If after the hearing, the Bank does not find that the complaint is justified, it shall be reviewed by the board of the Bank and the decision of the board, which shall be rendered within eight days, shall be final unless the recipient seeks its review by die Court within thirty days of that decision.

Liabilities of Directors and Officers.

47. Any person being a director, chief executive officer, manager, or other officer of a Financial institution, who:

(a) knowingly violates any law, rule, regulation, bylaw, agreement with an order by the Bank to which the institution is subject;

(b) participates or assents to such violation; or

(c) commits gross negligence or intentional wrong in the course of his duties or intentional wrong to the financial institution;

shall be liable in his personal and individual capacity for all damages which the financial institution, its shareholders or any other persons shall have sustained in consequence.S69 Failure to Secure Compliance.

48. Any director, chief executive officer, manager, or other officer of a financial institution who fails to take all reasonable steps to secure compliance by the institution with any requirement of this Act, or Regulations or Bylaws made under this Act, and the Central Bank of Swaziland Order, 1974, commits an offence and shall be liable on conviction to a fine of not less than fifty thousand (E50.000) or imprisonment for not less than one year, or both.

Persons Disqualified as Directors, etc.

49. (1) Without prejudice to anything in any other law, no person shall act or continue to act as a director or manager of, or otherwise be directly or indirectly involved in the management in Swaziland of, a financial institution, or be an agent within the meaning of Section 17, or otherwise represent in Swaziland any financial institution:

(a) if his estate is declared insolvent or bankrupt in Swaziland or any other country, if such person has not been rehabilitated by order of a court; or

(b) if he is convicted of an offence involving dishonesty or fraud.

(2) No person who has been a director or manager of, or otherwise directly or indirectly concerned in the management of, any financial institution which has been wound-up, whether in or out of Swaziland, shall, without the approval in writing of the Bank, act or continue to act as a director or manager of, or otherwise be directly or indirectly concerned in the management in Swaziland of, any financial institution.

(3) Any person who contravenes subsection (1) or (2) commits an offence and shall be liable on conviction to a fine of not less than two hundred and fifty thousand Emalangeni (£250,000) or imprisonment for two years or both.

(4) A person who is a director, officer or employee of a financial institution shall not serve at the same time as a director, officer or employee of any other financial institution except where the Bank after consultation with the Minister permits, in writing, such service in respect of not more than one such other institution.

Reserve for Losses due to Negligence or Dishonesty.

50. Every financial institution shall either maintain a special reserve account which is, in the opinion of the Bank, adequate and which is reserved exclusively for the purpose of making good any loss resulting from the negligence or dishonesty of any of its officers

93 and other personnel, or it shall insure itself against such loss, to an amount which the Bank deems adequate, with a person approved by the Bank and carrying on insurance business or the business of guaranteeing against any such loss.

Financial Holidays.

51. (1) The Minister may declare by notice in the Gazette any day to be a financial holiday on which no financial institution may be open for business with the public.

(2) Except with the approval of the Bank, all financial institutions shall remain open for business with the public on such days, other than public holidays and financial holidays, and during such hours, as may be prescribed by Regulation or Bylaw.

(3) Any private obligation which can only be fulfilled at a financial institution and which would fall due on any day on which such institution is not open for business under this Section, shall be deemed to fall due on the next day on which such institution is open for business.

Substitution for Depositor's Signature.

52. If in any transaction connected with the opening of, deposit into, or withdrawal from, a deposit account, the depositor is unable to sign, his thumb impression affixed in the presence of an officer of the financial institution shall have the same legal effect as if it were the depositor's signature.

Acceptance of Deposits by Insolvent Financial Institutions.

53. (1) A financial institution which receives any deposits at a time when its liabilities exceed its assets commits an offence and shall be liable on conviction to a fine of not less than one hundred thousand Emalangeni (£100,000).

(2) A director, officer or employee of a financial institution who knows of, or, in the proper performance of his duties, should know that the liabilities of such institution exceed its assets, and who receives, or authorises the acceptance of, a deposit commits an offence and shall be liable on conviction to a fine of not less than fifty thousand Emalangeni (E50,000) or imprisonment for not less than one year or both.

(3) In any prosecution under subsection (1) or (2), it shall be a defence if the accused establishes that at the time of the acceptance of the deposit, the depositor was aware of the situation of the financial institution.

Anti-Competitive Agreements.

54. Every contract, combination or conspiracy in restraint of banking business shall be illegal and any person who shall make any such contract or engage in any such combination or conspiracy commits an offence and liable on conviction to a fine of not less than five hundred thousand Emalangeni (E500.000) or to imprisonment for one year or both.

Tying Provisions.

55. (1) A financial institution shall not extend credit, lease or sell property of any kind, or furnish any service on the condition or requirement:

(a) that the customer shall obtain or provide some additional credit, property or service from or to such financial institution, its holding company or any other subsidiary of that company, other than those related to and usually provided in connection therewith as determined by the Bank;

(b) that the customer shall not obtain some other credit, property or service from a competitor of such financial institution, its parent company or any other subsidiary of that company, other than a condition or requirement that such financial institution shall reasonably impose in a credit transaction to assure the soundness of the credit.

(2) The Bank may permit such exceptions to this prohibition as it considers will not be contrary to its purpose.

(3) Where the Bank has reason to believe that a financial institution is in breach of subsection (1) above, it shall carry out an investigation to determine whether there is such a breach.

94 (4) The procedure for any investigation in terms of this Section shall be prescribed in Bylaws made by the Bank.

(5) If, following the investigation, a financial institution is found to be in breach of this Section, it shall be liable to a minimum administrative penalty to be imposed by the Bank of fifty thousand Emalangeni (E50.000) plus an additional fine of twenty-five thousand Emalangeni (E25.000) in respect of each day in which the breach continues.

Board of Directors.

56. (1) Within a period of six months from the coining into force of this Act, the board of a financial institution shall consist of not fewer than five or more than fifteen directors of which at least 50% shall be Swazi citizens including the Chairman and the principal officer of the financial institution shall be a member of the board.

(2) The principal officer acting in the capacity of board member shall not be the chairman of the board.

(3) No person shall serve as director, or principal officer of a bank without the prior written approval of the Bank if:

(a) the bank holds an unreimbursed loss attributable to a charged-off obligation of, or holds a judgement against the person or an entity that was controlled by the person at the time of funding and at the time of default on the loan or other advance of credit that gave rise to the judgement or charged-off obligation; or

(b) the person has been convicted of a criminal offence involving fraud or other dishonesty.

(4) If the shareholders of a financial institution do not elect directors before the 61st day after the date of its regular annual meeting, the Bank may appoint a curator in terms of this Act.

(5) If the curator is unable within ninety days following the appointment to nominate and elect persons willing and able to serve as directors, and the shareholders of the financial institution have not elected directors during this time period, the financial institution shall be liquidated in accordance with the Schedule to this Act.

(6) Where there is a vacancy on the board that reduces the number of directors to fewer than five, the remaining directors shall nominate and elect a person(s) willing and able to serve as a director(s) by not later than thirty days after the date the vacancy occurs.

(7) The Bank may, sixty days after the date the vacancy referred to in subsection (6) occurs appoint a curator in terms of this Act to operate the financial institution and nominate and elect a person(s) willing and able to serve as a director(s) so that the board shall consist of not fewer than five persons.

(8) If the curator is unable to nominate or elect a person(s) willing and able to serve as a director to increase the number of directors to not less than five within ninety days following the appointment of the curator, the financial institution shall be liquidated in accordance with the Schedule to this Act.

(9) Before a person commences to serve as a director, the person shall submit an affidavit for filing in the minutes of the financial institution stating that the person, to the extent applicable:

(a) accepts the position and is not disqualified from serving in the position;

(b) will not violate or knowingly permit any director, principal officer, or other employee of the financial institution to violate any provision of this Act;

(d) acknowledges and accepts the responsibility for the overall supervision of the bank.

(10)The board shall meet as often as the business of the financial institution may require but not less frequently than once during each calendar quarter.

95 (11)At each regular meeting the board shall review and approve the minutes of the prior meeting and review the operations, activities, and financial condition of the bank.

(12)The board may designate committees from among its members to perform these duties and approve or reject the committees' reports at each regular meeting.

(13)The board shall keep minutes of its proceedings.

(14)The board shall appoint a principal officer who shall primarily be responsible for the execution of board policies, supervision of the daily operations of the financial institution, and the maintenance and storage of all books and records of the financial institution. The board may appoint other officers of the financial institution as it considers necessary.

(15) Unless expressly authorized by the board and recorded in its minutes, an officer or employee of the bank may not create or dispose of an asset of a financial institution or create or incur a liability on behalf of the financial institution.

Transactions Involving Directors, Principal Shareholders, Officers, or Affiliates.

57. (1) Without the prior approval of a disinterested majority of the board recorded in the minutes, or if a disinterested majority cannot be obtained the prior written approval of the Bank, a bank may not directly or indirectly:

(a) sell or lease an asset of the financial institution to a director, principal shareholder, officer, or an affiliate; or

(b) purchase or lease an asset in which a director, principal shareholder, officer, or affiliate of the bank has an interest in:

Provided that in relation to the property mentioned in subsection (l)(b) above, a lease may not be . concluded, renewed, or extended without the prior written approval of the Bank.

(2) All transactions, both debit and credit, with directors, principal shareholders, officers, or an affiliate shall be on terms and conditions as are offered to members of the general public, that are consistent with safe and sound banking practices, and are in full compliance with the bank's operating policies and procedures.

(3) The Bank shall issue Bylaws governing the extension of loans and other credit facilities to directors, principal shareholders, officers, and affiliates, and their related interests.

Acquisition and Ownership of Facilities, Fixed Assets, and other Real Property.

58. For the purposes of this Section, "facility" means real property, including an improvement, that a financial institution owns or leases, to the extent the lease or the leasehold improvement is capitalised, for the purpose of:

(a) providing space for employees of the financial institution to perform their duties and for employees and customers of the financial institution to park;

(b) providing housing accommodation for its staff;

(c) conducting banking business, including meeting the reasonable needs and convenience of the public and the financial institution's customers, computer operations, document and other item processing, maintenance and storage of foreclosed collateral pending disposal;

(d) holding, improving, and occupying as an incident to future expansion of the financial institution's facilities; or (e) conducting any other activity as may be authorised by the Bank. Investment in Facility.

59. (1) A financial institution shall not, without the prior written approval of the Bank, directly or indirectly invest an amount in excess of its unimpaired paid-up or assigned capital and unimpaired balance in the reserve account in facilities, furniture, fixtures, equipment, or vehicles.

96 (2) Real property acquired for the purposes envisaged in Section 58(d) and not improved and occupied by the financial institution ceases to be a facility on the third anniversary of the date of its acquisition unless the Bank grants a delay in the improvement and occupation of the property by the financial institution.

(3) A financial institution shall comply with regulatory accounting principles in accounting for its investment in and depreciation of facilities, furniture, fixtures, equipment, and vehicles. Other Real Property. 60. A financial institution may not acquire real property except: (a) as provided in Section 58 for use by a financial institution as a facility; (b) through foreclosure on debts previously contracted in good faith; or, (c) as the Bank may prescribe in Bylaws. Liquidation and Re-organisation of a Financial Institution.

61. (1) Notwithstanding the provisions of the Companies Act, No.7 of 1912, the Insolvency Act, No. 81 of 1955 or any other law, the liquidation and re-organisation of financial institutions shall be subject to the provisions stated in the Schedule to this Act.

(2) The Minister may, in consultation with the Bank, amend the schedule to this Act by Notice published in the Gazette. PART VI GENERAL PROVISIONS AND REPEAL Regulations.

62. The Minister may, in consultation with the Bank, make Regulations for the better carrying out of the purposes and provisions of this Act, including: (a) prescribing annual license fees for financial institutions, their agents and branches; (b) prescribing the form of deed of hypothecation; (c) prescribing the oath of fidelity and secrecy; (d) declaring financial holidays; or (e) prescribing the manner of making appeals. Bylaws.

63. The Bank shall make Bylaws, including prescribing: (a) minimum required capital; (b) computation of risk weighted assets; (c) classes of institutions; (d) minimum liquid assets; (e) the distribution between the various types of liquid assets required; (f) prudential rules for the aggregation and attribution of loans and credit facilities;

(g) a system of loan classification and minimum provisioning requirements for bad and doubtful debts;

(h) reporting format and content of returns;

(i) prudential rules for the acquisition of real property;

(k) minimum shareholding to be held by Swazi citizens; and

(l) (k) a time limit for localization of senior management positions.

Appeals.,

64. (1) Any decisions taken by the Bank under this Act including any refusal or revocation of a License, shall be subject to appeal to the Minister.

97 (2) The appeal shall be noted in the manner and within the time prescribed by regulation in terms of Section 62.

Application to Swaziland Development and Savings Bank.

65. This Act shall apply to the Swaziland Development and Savings Bank to the extent that it is not inconsistent with any law regulating the affairs of that bank. Repeal. 66. The Financial Institutions (Consolidation) Order No.23 of 1975 is hereby repealed.

SCHEDULE PART I CURATORSHIP

1. Where the Bank deems it necessary in order to conserve the assets of a financial institution for the benefit of its depositors and other creditors, it shall appoint a curator, which may be the Bank, in which instance the Bank shall appoint a specific employee of the Bank to manage the curatorship, or another person, upon finding that:

(a) the capital of the financial institution is impaired or such impairment is threatened;

(b) the financial institution is violating the provisions of this Act or the Central Bank of Swaziland Order No. 6 of 1974;

(c) the financial institution is engaging in fraudulent or questionable practices in the conduct of its business which endangers its reputation or threatens its solvency;

(d) the financial institution is conducting business in an unsafe or unauthorized manner; or,

(e) the financial institution is violating any conditions of its License, any Regulation or Bylaw made under this Act, or order of the Bank.

2. The curator shall:

(a) assume the management of the financial institution, all of its property, books, records and effects;

(b) exercise all powers necessary to preserve, protect and recover any of the assets of the financial institution; and

(d) institute any legal proceedings on behalf of the institution and defend suits against it.

3. The powers of the board of directors shall be suspended during the period of the curatorship until the conclusion of the curatorship.

4. The curator shall have the power to overrule or revoke decisions of the board of directors and management of the financial institution.

5. The remuneration of the curator, and the indemnification of the curator from liability to third persons on account of all actions taken in good faith, shall be borne by the financial institution.

6. The curator shall report to and be responsible to the Bank and the term of the curator shall continue, unless replaced by a successor, until such time as the Bank finds either:

(a) that the financial institution is rehabilitated or reorganized, so that it may be returned to management or new management under such conditions as are necessary to prevent a recurrence of the conditions that gave rise to the curatorship; or

(b) that the financial institution is in such condition that its continuance in business would involve probable loss to its depositors and other creditors, in which case the provisions of Part III of this Schedule shall apply.

98 7. The curator shall have power to:

(a) suspend, in whole or in part, the repayment or withdrawal of deposits and other liabilities of the financial institution:

Provided that deposits and other credits received while the financial institution is under curatorship shall not be subject to any limitation as to repayment or withdrawal but shall be segregated and not used to liquidate any indebtedness of the financial institution existing at the time the curator was appointed or subsequent indebtedness incurred in order to discharge such indebtedness;

(b) repudiate any contract or lease to which the financial institution is a party other than a financial contract (such as a securities contract, commodity contract, forward contract, repurchase agreement, swap agreement or other similar agreement that the Bank determines to be a financial contract for the purposes of this provision); Provided, however, that the curator may repudiate a financial contract that in his opinion is fraudulent;

8. The curator shall seek the authority of the Bank to rehabilitate the financial institution and return it to management or to reorganize it in accordance with the provisions of this Schedule.

9. (1) If the Bank authorizes the curator to proceed to reorganize the financial institution, the curator shall, after granting a hearing to all interested parties, propose a reorganization plan and send a copy of it to all depositors and other creditors.

(2) The copy of the reorganization plan shall be accompanied by a notice stating that if the reorganization plan is not refused in writing within a period of (thirty) days by persons holding at least (one-third) of the aggregate amount of deposits and creditors comprising at least (one-third) in value of the aggregate of the claims of creditors (other than subordinated creditors), the curator shall, with the approval of the Bank, proceed to carry out the reorganization plan.

10. In deciding whether to approve a reorganization plan, the Bank shall consider whether:

(a) the reorganization plan is equitable, and likely to protect the interests of the depositors, creditors and shareholders;

(b) the reorganization plan provides for bringing in new funds so as to establish adequate ratios between:

(i) capital and deposits; (ii) capital and risk assets; or (iii) liquid assets and deposits; or

(c) the reorganization plan provides for the removal of any director, officer, or employee responsible for the circumstances which necessitated the appointment of the curator.

11. When in the course of reorganization it appears that circumstances render the plan inequitable or its execution undesirable, the curator may recommend to the Bank to order the compulsory liquidation of the financial institution in accordance with the provisions of Part III of this Schedule.

12. During the period of curatorship, an aggrieved party may appeal against an action or order of the curator or of the Bank to the Court.

PART II

VOLUNTARY LIQUIDATION

13. (1) Any voluntary liquidation of a financial institution shall be subject to the written authorization of the Bank.

(2) The Bank may grant such authorisation if it appears to the Bank that

(a) the financial institution is solvent and has sufficient liquid assets to repay its depositors and other creditors without delay;

99 (b) the liquidation has been approved by shareholders representing two-thirds of its capital at a meeting called expressly for this purpose.

14. Upon receipt of the authorization of the Bank, the financial institution shall:

(a) immediately cease to do business, retaining only the powers to do the necessary business for the purpose of effecting an orderly liquidation;

(b) repay its depositors and other creditors; and

15. Within thirty days from the receipt of the authorization referred to in Section 13 of this Schedule a notice of voluntary liquidation, setting forth such information as the Bank may prescribe, shall be sent by mail to all depositors, other creditors, and persons otherwise entitled to funds or property held by the financial institution as a fiduciary or lessor of a safe deposit box.

16. In addition, the notice shall also be posted conspicuously on the premises of each office and branch of the financial institution and shall be given such other publication as the Bank may direct.

17. The authorization to go into voluntary liquidation shall not prejudice the rights of a depositor or other creditor to payment in full of his claim or the right of an owner of funds or other property held by the financial institution to the return thereof and all lawful claims shall be paid promptly and all funds and other property held by the financial institution shall be returned to their rightful owners within such maximum period as the Bank may prescribe.

18. (1) If in the opinion of the Bank the financial institution has discharged all of its obligations, it shall be struck from the list of authorized institutions and the remainder of its assets shall be distributed among its shareholders in proportion to their respective rights.

(2) No such distribution shall be made before:

(a) all claims of depositors and other creditors have been paid or, in the case of a disputed claim, before a financial institution has turned over to the Bank, or to any other person proposed by the liquidating financial institution and approved by the Bank, sufficient funds to meet any liability that may be judicially determined;

(b) any funds payable to a depositor or other creditor who has not claimed them have been turned over to the Bank or to any other person proposed by the liquidating financial institution and approved by the Bank; and

(c) any other funds and property held by the financial institution that could not be returned to the rightful owners in accordance with the provisions of Section 16 of this Schedule have been transferred to the Bank, or to any other person proposed by the liquidating financial institution and approved by the Bank, together with the relevant inventories.

19. (1) Any property not claimed within a period of ten years following their transfer shall be presumed to be abandoned property and shall be dealt with as determined by the Bank.

Any funds remaining unclaimed for a period of more than five years following their transfer to the Bank shall be dealt with as determined by the Bank.

20. If the Bank finds that the assets of a financial institution whose voluntary liquidation has been authorized will not be sufficient for the full discharge of all of its obligations or that completion of the liquidation is unduly delayed, it shall appoint itself or another person as liquidator to take possession of the financial institution and commence proceedings leading to its compulsory liquidation in conformity with the procedures set forth below.

PART III

COMPULSORY LIQUIDATION

100 21. Notwithstanding the provisions of the Company's Act No. 7 of 1912 and the Insolvency Act No. 81 of 1955, the Bank may appoint itself, in which instance the Bank shall appoint a specific employee of the Bank as manager of the liquidation, or another person as liquidator, to take possession of a financial institution upon a finding by the Bank that:

(a) its capital is impaired or its condition is otherwise unsound:

Provided, that, the condition of a financial institution shall be deemed to be unsound when the ratio of its capital to total assets is less than three percent; (b) its business is being conducted in an unlawful, fraudulent, unsafe or unsound manner; (c) the continuation of its activities is detrimental to the interests of its depositors; (d) its License has been revoked or suspended; or

(e) notice of intention to revoke the License of the financial institution has been served under Section 16 of this Act.

22. (1) When taking possession in terms of Section 21 of this Schedule, the liquidator shall post on the premises of the financial institution a notice announcing its action pursuant to this Schedule, and the time when such possession shall be deemed to take effect which time shall not be earlier than the posting of the notice.

(2) A copy of the notice shall be lodged with the Court.

23. Within a period of thirty days after the date on which the liquidator has taken possession of the financial institution, the financial institution or any other interested party may institute proceedings in Court to have its rights determined:

Provided that such proceedings shall not operate as a stay to any action that the liquidator is authorized to take under this Schedule.

24. The liquidator shall as soon as possible after his appointment commence proceedings leading to compulsory liquidation and take such other measures as he may deem appropriate in accordance with Section 25 of this Schedule.

25. (1) After taking possession of a financial institution, the liquidator shall be vested with the full and exclusive power of management and control of that financial institution, including the power to: (a) continue or discontinue its operations; (b) stop or limit the payment of its obligations; (c) employ any necessary staff; (d) execute any instrument in the name of the financial institution;

(e) initiate, defend in its name any action or proceedings to which the.financial institution may be party;

(f) terminate possession by restoring the financial institution to its board of directors; or

(g) liquidate or take such other measures as it may deem appropriate under this Section.

(2) The liquidator shall succeed to all rights, titles, powers and privileges of the financial institution, of any shareholder, account holder, depositor, officer, or director of the financial institution with respect to it and its assets. (3) The liquidator may, with the approval of the Bank and in terms of Section 21 of this Schedule: (a) merge or consolidate the financial institution with another financial institution; (b) transfer any asset or liability of the financial institution; or

(c) offer the assets or shares of the financial institution for sale to any interested party or as security for loans from the Bank.

26. (1) The actions of the liquidator of a financial institution under Section 25 of this Schedule may be confirmed by the Bank. (2) To facilitate the liquidation of a financial institution, the Bank may: (a) purchase any of the assets of the financial institution or assume any of its liabilities; (b) guarantee another financial institution against loss by reason of such financial

101 institution merging or consolidating with or assuming the liabilities and purchasing the assets of such financial institution; or

(3) The Bank may provide any investor acquiring control of, merging with, consolidating with or acquiring the assets of a financial institution with the financial assistance that it is authorized to provide under subsection (2).

(4) Pending such further action as is contemplated under subsection (1), the Bank may grant a License for the operation of a temporary financial institution for not longer than two years.

(5) The temporary financial institution may:

(a) assume such deposits and other liabilities; or

(b) purchase such assets, as the Bank may deem appropriate, of a financial institution that becomes subject to Part III of this Schedule.

(6) The Board of Directors of the temporary financial institution shall be appointed by and be responsible to the Bank.

(7) In determining the course of action to be taken in the liquidation of a financial institution under this Part, the Bank shall be guided by the following considerations:

(a) least cost to the Bank and any funds which it may administer in order to protect depositors; (b) convenience to the community in maintaining banking facilities; and (c) tendency to create a monopoly or to restrict competition in the area served. 27. (1) When the liquidator has taken possession of a financial institution:

(a) any term, statutory, contractual or otherwise, on the expiration of which a claim or right of the financial institution would expire or be extinguished shall be extended by six months from the date of the seizure;

(b) any attachment or lien except a lien existing six months prior to the seizure of the financial institution shall be vacated and no attachment or lien except a lien created by the liquidator in the application of these provisions shall attach to any of the property or assets of the financial institution so long as such possession continues; and

(c) any transfer of an asset of the financial institution made after or in contemplation of its insolvency or the seizure with intent to effect a preference within six months thereof shall be void. In the latter case, the liquidator may recover the asset transferred or its value from the initial transferee or any subsequent transferee except a transferee who has acquired the asset for value in good faith.

28. No execution shall be returned against the assets of a seized financial institution except, in the discretion of the court, an execution effected pursuant to a judgment rendered prior to the date of the seizure for an amount not exceeding ten thousand Emalangeni (El0,000).

29. The liquidator shall have power to:

(a) suspend, in whole or in part, the repayment or withdrawal of deposits and other liabilities of the financial institution;

(b) repudiate any contract or lease to which the financial institution is a party other than a financial contract, including securities contract, commodity contract, forward contract, repurchase agreement, swap agreement or other similar agreement that the Bank determines to be a financial contract for the purposes of this provision:

Provided, that the liquidator may repudiate a financial contract which in his opinion is fraudulent; or

(c) enforce any contract other than a financial contract entered into by the financial institution notwithstanding any provision of the contract providing for termination, default or acceleration by reason of insolvency or the appointment of a liquidator. 102 30. As soon as possible, the liquidator shall take the necessary steps to terminate all fiduciary functions performed by the financial institution, return all assets and property held by the financial institution as a fiduciary to the owner thereof, and settle its fiduciary accounts.

31. (1) As soon as possible after taking possession, the liquidator shall make an inventory of the assets of the financial institution and lodge a copy thereof with the Registrar of tie Court and this copy of the inventory shall be available for examination by interested parties at the office of the Registrar of the Court.

(2) The liquidator shall, not later than one hundred and twenty days after his appointment, send by mail, to the address shown on the financial institution's books, to all depositors, other creditors, safe deposit box lessees, a statement of the nature and amount for which their claim is shown on the financial institution's books.

(3) Any objection to the statement shall be filed with the liquidator not later than thirty days after receipt of the statement.

(4) The liquidator shall inform safe deposit box lessees to withdraw their property in person within thirty days after receipt of the statement.

32. (1) The contents and any unclaimed property held by the financial institution as custodian, together with inventories pertaining thereto, shall be deposited by the liquidator in the Bank or in such depository as the Bank may direct and shall be kept for ten years, unless claimed by the owner before the expiration of that period.

(2) On the expiration of the ten years all funds and property not claimed shall be presumed to be abandoned property and shall be dealt with as determined by the Bank.

33. Within ninety days after expiration of the thirty days specified in Section 31 of this Schedule, the liquidator shall:

(a) reject any claim if it doubts the validity thereof;

(b) determine the amount, if any, owing to each known depositor or other creditor and the priority class of his claim under the provisions of this Schedule;

(d) notify each person whose claim has not been allowed in full, and publish in a newspaper of general circulation once a week for three consecutive weeks, a notice of the date and place where the schedule of the steps the liquidator proposes to take will be available for inspection, and the date, not sooner than thirty days counting from the date of the third publication in the newspaper, on which the liquidator will file the schedule with the Court.

34.(1) Within twenty days after the filing of the schedule with the Court, any depositor, other creditor, or shareholder, and any other interested party may file an objection to any step proposed and any such objection shall be considered by the Court following notice to the liquidator, and any interested parties.

(2) If an objection is upheld, the Court shall direct that an appropriate Modification of the schedule be made.

(3) After filing the schedule the liquidator may, from time to time, make partial distribution to the holders of claims which are undisputed or which have been allowed by the Court, on condition that a proper reserve is established for the payment of disputed claims and as soon as possible after all objections have been decided upon, the liquidator shall make final distribution.

35.(1) The following claims shall have priority against the general assets of a financial institution in the order indicated below:

(a) any necessary and reasonable costs, charges and expenses incurred by the liquidator, including his remuneration, in application of the provisions of this Schedule;

(b) any wages and salaries of officers and employees of the financial institution in liquidation for the three month period preceding the seizure of the Bank;

103 (c) any taxes, rates and deposits owed to the Government;

(d) any savings and time deposits which when aggregated do not exceed an amount of Ten Thousand Emalangeni (El0,000) per depositor;

(e) other deposits; and

(f) other liabilities.

(2) In the event of the winding up of a financial institution the provisions of section 47 of this Act shall apply.

(3) After payment with interest thereon at a rate to be fixed by the liquidator with the approval of the Court of all the claims filed on time, any remaining claims which were not filed within the prescribed time shall be paid.

(4) If the amount available for any class is insufficient to provide payment in full, the said amount shall be distributed pro rata among the members of that class.

36. Any assets remaining after all claims have been paid shall be distributed among all the shareholders in proportion to their participation.

37.(1) Unclaimed funds remaining after the final distribution shall be deposited by the liquidator in the Bank or such depository as the Bank may direct and shall be kept for ten years, unless claimed by the owner before the expiration of that period.

(2) On the expiration of the said period the funds remaining unclaimed shall be presumed to be abandoned property and shall be dealt with as determined by the Bank.

38.(1) Once all assets have been distributed in accordance with the provisions of this Schedule, the liquidator shall render an audited account to the Court and upon approval of this account by the Court, the name of the financial institution shall be struck from the list of authorized institutions and the Registrar of Companies shall be notified of the fact of the striking off.

(2) The liquidator shall be relieved of any liability in connection with the liquidation and the liquidation shall then be declared by the Court which shall terminate the judicial existence of the financial institution in Swaziland.

39.The curator, liquidator or the Bank may bring a civil action against any director, chief executive officer, manager, officer, employee, agent or independent contractor of a financial institution for gross negligence or intentional wrong for damages caused to that financial institution and may recommend to the Director of Public Prosecutions the criminal prosecution of any such person.

104

THE RETIREMENT FUNDS ACT Commentary

This is an Act that makes provision for the regulation of Retirement Funds. According to the Act Retirement Fund means the following: a) Any plan, fund or programme established for the purpose of providing a management established for the purpose of providing activities/ or lump sum benefits for its members on their retirement or for the dependants of such members on the death of such member. b) Retirement benefits to individuals. The term includes but is not limited to any pension fund, provident fund or retirement annuity fund. c) A business carried on with the purpose of providing annuities and/ or lump sum benefits for its members on their retirement of to the dependants of such members on the death of such members.

It must be noted that every retirement fund has to be registered and should have a controlling body which shall be responsible for controlling the business of a retirement fund and which shall be referred to as “the management board”. The board shall consist of at least four persons who shall be referred to as “trustees” and of whom at least 50% shall be elected by the members and the balance shall be appointed by the employer.

The Act goes on to list the functions and duties of the management board, which has to ensure that the interest of members is protected at all times by acting with care, diligence and good faith, avoiding conflicts of interests and acting impartially.

Every retirement fund shall maintain an office in Swaziland which shall be its principal place of business and all contributions due to the fund in respect of its members shall be paid to the fund or to the person administering the funds assets within 7 days of the expiry of the period for which it was due.

All monies received by the fund have to be deposited in the fund’s bank account.

A retirement fund may grant a loan to a member as an investment, or issue a guarantee so that the member may obtain a loan to purchase a dwelling house, or land and erect a dwelling house on it, or for the making of additions, alterations or to maintenance on it.

If the loan is to be utilized for the purpose of building a dwelling on Swazi Nation land, then before granting the loan, the fund shall ensure that the written permission of the official custodians of the land has been obtained.

A retirement fund shall, within 6 months after the end of its financial year submit to the registrar a copy of the funds audited financial statement. The auditor shall have been duly appointed by the fund and approved by the Register in writing.

Unless permitted by this Act or the Income Tax Order, no benefit or right which rose in respect of contributions made by or on behalf of a member shall be capable of being reduced, transferred, ceded, pledged or hypothecated or be liable to attachment.

105 The Retirement Funds Act, 2005

(Act No. 5 of 2005)

An Act to make provision for the regulation and supervision of retirement funds and for matters incidental thereto.

ENACTED by the King and the Parliament of Swaziland. PART I PRELIMINARY ARRANGEMENT OF SECTIONS 1. Short title and commencement 2. Interpretation PART II INTRODUCTORY PROVISIONS AND REGISTRATION OF RETIREMENT FUNDS 3. Prohibition of unregistered retirement funds 4. Registrar of retirement funds and Retirement Funds Board, 5. Registration of retirement funds 6. Cancellation or suspension of registration 7. Retirement fund business PART III MANAGEMENT OF A RETIREMENT FUND 8. Management board of a retirement fund 9.Duties of the management board 10. Fiduciary responsibilities of the management board

11. Principal officer of a retirement fund 12. Duties of a principal officer 13. Rules of a retirement fund 14. Amendment of rules 15. Registered office of a retirement fund 16. Contributions due to a retirement fund 17. Retirement fund bank accounts PART IV

STATUTORY OBLIGATIONS OF A RETIREMENT FUND 18. Retirement fund assets 19. Retirement fund investments 20. Financial statements 21. Appointment, powers and duties of auditor 22. Appointment, powers and duties of valuator 23. Actuarial valuations 24. Amalgamations and transfers 25. Impaired financial soundness of a retirement fund PARTV EXEMPTION FROM CERTAIN PROVISIONS OF PART IV OF THIS ACT 26. Registrar's authority and allowable exemptions 27. Exemption from the provisions of section 21 28. Alternative obligations for funds glinted exemption in terms of section 27 29. Exemption from the provisions of section 22 and 23 of the Act

106 30. Alternative obligations for funds granted exemption in terms of section 29. PART VI STATUTORY RESTRICTIONS ON THE DISPOSAL OF RETIREMENT FUND BENEFITS 31. Retirement benefits not reducible, transferable or executable 32. Allowable deductions from retirement benefits 33. Death of a retirement fund member 34. Insolvency of a retirement fund member PART VII INSPECTION, JUDICIAL INTERVENTION AND WINDING UP 35. Registrar's powers of inspection 36. Inspector's report 37. Registrar's course of action 3 8. Appointment of interim administrator 39. Powers and duties of interim administrator 40. Voluntary dissolution of a retirement fund 41. Judicial winding up of a retirement fund 42. Special provision relating to liquidation of funds PART VIII CONSIDERATION AND ADJUDICATION OF COMPLAINTS 43. Submission and consideration of complaints 44. Establishment of Office of the Retirement Funds Adjudicator 45. Appointment of Adjudicator 46. Main object of Adjudicator

47. Disposal of complaints

48. Opportunity of comment

49. Parties to complaint

50. Jurisdiction and prescription

51. Time limit for lodging of complaints

52. Procedure for conducting investigation 53. Legal representation 54. Record of proceedings 55. Statement by Adjudicator regarding determination 56. Interest on amount awarded 57. Enforceability of determination 58. Access to court 59 Powers of Adjudicator 60. Expenses of the Adjudicator 61. Remuneration and terms and conditions of employment of Adjudicator and employees 62. Report of Adjudicator

63. Offences and penalties 64. Limitation of liability 65. Liquidation

107 PARTIX GENERAL PROVISIONS

66. Administration, custodians and investment managers

67. Exemptions 69. Power to make regulations 70. Registrar's decision may be made an order of Court 71. Registrar may extend certain periods 72. Adherence to the provisions of this Act shall not constitute an offence 73. Application of this Act 74. Funds established under the Public Service Pensions Order, 1993 PARTI SHORT TITLE AND INTERPRETATION Short Title and Commencement

l.This Act may be cited as The Retirement Funds Act, 2005, and shall come into force on such date as the Minister may, by Notice in the Gazette, determine.

Interpretation

2.1n this Act, unless the context otherwise requires:

"actuary" means any fellow of an institute, faculty, society or chapter of actuaries approved by the Registrar;

"adjudicator" means the Retirement Funds Adjudicator appointed in terms of section 45 of this Act;

"annuity" means a series of equivalent payments payable either monthly, quarterly, bi-annually or annually;

"association" means any association of people;

"auditor" means a person who is registered as an auditor in terms of the Accountants Act, 1985;

"complainant" means:

(a) any person who is, or who claims to be: (i) a member or former member of a fund; (ii) a beneficiary or former beneficiary of a fund; (iii) an employer who participates in a fund; (b) any group of persons referred to in a (i), (ii) or (iii); (c) a management board of a fund or a member thereof; or (d) any person who has an interest in a complaint.

"complaint" means a complaint of a complainant relating to the administration of a fund, the investment of its assets or the interpretation and application of its rules, and alleging-

(a) that a decision of the fund or any person purportedly taken in terms of the rules was in excess of the powers of that fund or person, or an improper exercise of its powers;

(b) that the interest of the complainant has or will be prejudiced as a result of the administration of the fund by any person, whether by act or omission;

108 (d) that an employer who participates in the fund has not fulfilled its duties in terms of the rules of the fund; but shall not include a complaint which does not relate to a specific complaint.

"consolidate" for the purposes of this act means the incorporation of all alterations, rescissions or additions to a fund's rules into a bound set of rules of the fund and which rules have then been approved and endorsed by the Registrar. "court" means the High Court of Swaziland having jurisdiction, "dependant" means in relation to a member: (a) a person in respect of whom the member is legally liable for maintenance; (b) a person in respect of whom the member is not legally liable for maintenance if such person (i) was in the opinion of the management board dependent on the member for maintenance;

(ii) is the spouse of the member and shall include a spouse as a result of any customary or religious union;

(iii) is a child of the member and shall include a posthumous child, an adopted child and an illegitimate child;

(iv) a person in respect of whom the member would have become legally liable for maintenance, had the member not died.

"employer" means:

(a) in the context of retirement funds referred to in paragraph (a) of the definition of retirement funds, a person representing the person or group of persons whose employees are members of the retirement fund or a person representing the governing body of an organisation whose employees are members of the retirement fund; or

(b) in the context of retirement funds referred to in paragraph (b) of the definition of retirement funds, a person representing a business carrying on the business of a retirement fund; "financial year" in relation to any person, means the 12 months, or such other period as approved by the Registrar, preceding a set day of the month in each calendar year as at which the person's financial statements are drawn;

"fund" means a retirement fund as contemplated in this Act;

"insurance and retirement benefit trust fund" means the fund established in terms of the Insurance Act, 2005;

"insurer" means a person registered in terms of the Insurance Act, 2005;

"life annuity" means for purposes of this Act an annuity payable during the lifetime of an individual or during the joint lifetime of an individual and any dependant nominated by the individual;

"management board" means the body as contemplated in section 8 of this Act which has been entrusted with control over the retirement fund ;

"market value" means the value of a fund's assets as determined in terms of the Regulations;

"member" means any person whose membership of the fund has been established in terms of the rules of the fund and has not yet been terminated in terms of the provisions of the rules and shall include a person entitled to or receiving a benefit under the rules of the fund;

"Minister" means the Minister responsible for Finance;

109 "officer" in relation to a fund means any member of the management board, any manager, principal officer, treasurer, clerk or employee and shall exclude any person appointed as auditor in terms of section 21 or any person appointed as valuator in terms of section 22 of this Act;

"pension" means an annuity payable under any law or under the rules of a pension fund, provident fund or retirement annuity fund;

"person" shall include a juristic person; "principal officer" means the person referred to in Section 11 of this Act; "Registrar" means the Registrar of retirement funds referred to in Section 4 of this Act; "Regulations" means the Regulations made in terms of this Act;

"retirement fund" means:

(a) any plan, fund or programme established for the purpose of providing an arrangement established with the purpose of providing annuities and or lump sum benefits for its members on their retirement or for the dependants of such members on the death of such members;

(b) retirement benefits to individuals. The term includes but is not limited to any pension fund, provident fund or retirement annuity fund, as defined in the Income Tax Act, as amended from time to time; or (c) a business carried on with the purpose of providing annuities and or lump sum benefits for its members on their retirement or to the dependants of such members on the death of such members;

"rules" means the rules referred to in section 13 of this Act and which have been approved and endorsed by the Registrar in terms of section 13 of this Act;

"subsidiary" for purposes of this Act, means an associated organisation in which a person has an ownership interest exceeding at least 15% of that organisation; "this Act" includes the Regulations and the forms and directives emanating from those Regulations; "total interest" means:

(a) in the case of a retirement fund where the member's benefit on retirement is a series of equivalent payment's which is or has been determined by a formula taking into account one or more of age, salary, length of service or otherwise, the value of the member's benefit determined by the fund's appointed valuator or the value determined on a basis supplied by the fund's appointed valuator-Provided that the method of valuing the member's benefit shall be consistent with the basis used by the valuator to establish the fund's liabilities for purposes of this Act;

(b) in the case of a retirement fund where a separate account is kept of each member's share of the fund for retirement purposes, and which account is made up of an accumulation of contributions and investment returns thereon, the total amount of the member’s account and any other amount which the member may become entitled to from the fund;

"trustee" means a member of a management board; "valuator" means an actuary who has been appointed in terms of Section 22 of this Act. PART II INTRODUCTORY PROVISIONS AND REGISTRATION OF RETIREMENT FUNDS

Prohibition of Unregistered Retirement Funds 3. (1) After the expiry of a period of 12 months after the commencement of this Act, no person who was carrying on the business of a retirement fund at the commencement of this Act, shall carry on the business of a retirement fund unless he has been registered as a retirement fund in terms of section 5 of this Act.

(2) Every retirement fund which was in existence at the commencement of this Act shall, within 120 days after the commencement of this Act, apply to the Registrar for registration in terms of section 5 of this Act.

110 (3) Any retirement fund referred to in subsection (2) which fails to submit an application for registration in the allowed time, shall within 7 days of the expiry of the allowed time, show the Registrar proof to his satisfaction that it has decided to act in terms of section 40 of this Act, failing which, the Registrar shall act against the fund in terms of section 41 of this Act.

(4) The Registrar may extend the period for application for registration allowed in subsection (2), if an application for an extension is made to the Registrar in writing.

(5) No retirement fund which was established after the commencement of this Act shall commence operations until the Registrar has informed the fund in writing that its registration has been completed, or that its provisional registration has been approved and the Registrar has supplied the fund with a certificate of registration, or a certificate of provisional registration.

(6) After the commencement of this Act, no person shall carry on the business of a retirement fund after expiry of a period of 3 months from the date on which he has been advised by the Registrar that his application for registration has been refused, and the fund shall, within 7 working days of the expiry of the period of grace, show the Registrar proof that it has commenced to act in terms of section 40 of this Act, failing which the Registrar shall act against the fund in terms of section 41 of this Act.

(7) After the expiry of a period of 12 months from the commencement of this Act, no person shall use the words "retirement" as part of the name of his association or business or use a name for his association or business which may convey the impression that he carries on the business of a retirement fund, unless he has been registered as a retirement fund in terms of section 5 of this Act.

(8) After the expiry of a period of 12 months from the commencement of this Act, no person shall use the word "retirement" as part of the name of any of his products or services, or use any other name for his product or services which may convey the impression that he carries on the business of a retirement fund or is an agent of a retirement fund, unless the product or services that he is offering is underwritten by an insurer registered in terms of the Insurance Act, 2005, or a retirement fund and he has been duly authorised in writing by that insurer or fund to be its representative.

Registrar of Retirement Funds and Retirement Funds Board

4. (1) The person appointed as Registrar in terms of the Insurance Act, 2005, shall also be the Registrar of retirement funds and the powers vested in him and his office for purposes of insurance business shall also vest in him for purposes of retirement fund business as applicable.

(2) The Board created as the Insurance and Retirement Funds Board in terms of the Insurance Act, 2005, shall also be the Retirement Funds Board and the powers vested in that Board for purposes of insurance business shall vest in the Board for purposes of retirement fund business as applicable.

Registration of Retirement Funds

5. (1) An application for registration of a retirement fund under this Act shall be made to the Registrar by the principal officer in terms of the Regulations and prior to submitting any such application to the Registrar for consideration the principal officer shall ensure that his application is complete in that his application complies with the Regulations, and any omissions have been explained by way of a note.

(2) The Registrar may request an applicant to provide further details which the Registrar considers necessary for him to make a decision regarding registration of the retirement fund and the Registrar may refuse to consider an application solely on the grounds of inadequate or incomplete information.

(3) If the Registrar is satisfied that the Fund has complied with the Regulations, and he is satisfied with any other information that he may have requested in terms of subsection (2), he shall register the fund by issuing a certificate of registration and entering the details of the fund in the retirement funds register anb endorsing the rules of the fund and returning a copy to the applicant.

111 (4) If the Registrar is not satisfied that the requirements of the Regulations have been complied with, or he is not satisfied with any other information that he may have requested in terms of subsection (2), he shall not register the fund and he shall provide the applicant in writing with the reasons for his refusal to register the fund.

(5) Notwithstanding the provisions of section 3 and of subsection (4) of this Act, if the fund has complied with such requirements as the Registrar has prescribed and he is satisfied that the registration of the fund is in the public interest, the Registrar may register the fund provision ally and forward to the fund a certificate of provisional registration:

Provided that:

(a) the provisional registration shall be valid for a period of 3 years from the date of provisional registration;

(b) the Registrar may if he is satisfied that it is in the public interest, extend the period of provisional registration for a period of twelve months at a time;

(c) the period of extended provisional registration contemplated in subsection (5) (b) shall not exceed thirty six months in aggregate; and

(d) the fund shall endeavour to complete the requirements for registration and shall at the request of the Registrar provide him with details of its efforts to complete the requirements for registration.

(6) The Registrar may attach any conditions not inconsistent with this Act to a fund's registration that he considers necessary, and he shall not issue a certificate of registration unless he has informed the applicant in writing of his conditions, and the applicant has agreed in writing that he will abide by the conditions.

(7) Every retirement fund shall become a juristic person on the receipt by its Principal Officer of written confirmation of its registration by the Registrar, and shall thereafter be capable of suing and being sued in its own name and doing all the lawful things in order to exercise the powers vested in it to carry out the functions ascribed to it in terms of its rules, and to carry out its duties in terms of this Act.

(8) A person who supplies false information to the Registrar with the intention of fraudulently registering a retirement fund commits an offence, and shall, on conviction, be liable to a fine not exceeding E5 000 or a term of imprisonment not exceeding 1 year.

(9) No fund shall be registered or provisionally registered under this Act except as provided for in this section.

Cancellation or Suspension of Registration 6. (1) The Registrar shall cancel the registration of a fund: (a) on being provided with proof that the fund has ceased to exist; (b) on becoming aware that the fund's registration was based on false information; provided that, if the Registrar is satisfied that the false information was provided by mistake and not as part of a scheme to commit fraud, he shall suspend the registration in lieu of cancelling the registration, and he shall allow the fund to submit the correct information within 60 days of the suspension and he shall cancel the registration if the correct information is not supplied within this time, or is supplied but is not to his satisfaction.

(2) The Registrar may seek an order of the court authorising the cancellation or suspension of registration of a retirement fund*.

(a) if the fund has violated any provisions of this Act and has ignored any request by the Registrar to take corrective measures;

112 (b) if any investigation carried out by the Registrar gives the Registrar cause for cancellation or suspension.

(3) The court may suspend the registration of a fund in a manner in which it thinks fit and the court shall determine the period for which the suspension shall apply, the conditions attached to the suspension, the conditions for reinstatement and the consequences of failing to comply with such conditions.

(4) The court may cancel the registration of a fund if it considers this to be in the public interest.

(5) On the suspension of a fund's registration its members and employer shall cease to benefit from any concessions granted by the Income Tax Act, but, it shall remain subject to the provisions of this Act except that the fund may not make any changes to its rules and must cease to accept new members and must cease any marketing.

(6) A fund whose registration has been cancelled shall within 30 days of being informed of the cancellation of its registration by the Registrar provide proof to the Registrar that it has decided to act in terms of section 40 of this Act, failing which, the Registrar shall act against the fund in terms of section 41:

Provided that, if the Registrar considers it to be in the members' interest, he may proceed to act against the fund in terms of section 41 immediately on the cancellation of its registration, in which case the Registrar shall inform the fund of his intention and the fund shall not take any action in terms of section 40, or it shall cease any action that it may have commenced in terms of section 40.

(7) The costs of any successful application to the court by the Registrar for purposes of this section shall be borne by the fund.

(8) A person who contravenes the provision of subsection (5) commits an offence and shall, on conviction, be liable to a fine of E50 000 or a term of imprisonment not exceeding 2 years.

Retirement Fund Business

7. A retirement fund may not carry on any other business other than the business of a retirement fund, where the business of a retirement shall be taken to mean the purpose of the retirement fund as implied by the definition of "retirement fund" in terms of section 2 of this Act. PARTIII MANAGEMENT OF A RETIREMENT FUND Management Board of a Retirement Fund

8. (1) Every retirement fund shall have a controlling body which shall be responsible for controlling the business of the retirement fund and which shall be referred to as "the management board".

(2) The management board shall consist of at least 4 persons, who shall be referred to as "trustees", and of whom at least 50% shall be elected by the members and the balance shall be appointed by the employer:

Provided that, on application from a fund, and on the receipt of adequate information to his satisfaction, the Registrar may:

(a) grant a fund permission to have a management board consisting of less than four persons if this number is impractical or unreasonably expensive, provided that, the members' right to elect at least 50% of the trustees shall not be affected. (b) exempt a fund from the requirement that the members may elect at least 50% of the trustees if-

(i) the members of the fund are persons who are employees of more than three different employers who are not subsidiaries of the same holding company; or

(ii) the fund is a retirement annuity fund.

113 (3) The rules of the fund shall state the constitution of the management board, the procedure for election of the trustees, the procedures at meetings, voting rights of members of the management board, the breaking of deadlocks and the powers of the management board.

(4) The management board shall be headed by a chairman who shall be elected by the trustees from amongst themselves.

(5) Any decision of the management board shall be carried in a resolution which shall be minuted and each resolution shall be signed by a majority of the trustees- Provided that the chairman of the management board shall sign each resolution.

Duties of the Management Board

9. The management board shall ensure that:

(a) records of the operations of the retirement fund that completely and correctly reflect the operations of the fund are kept;

(b) all minutes of meetings are maintained in such a manner that the resolutions of the management board are correctly reflected;

(c) the minutes of the management board meetings are kept in a bound book, such that it will not be possible to remove or replace pages of the minute book, or to insert pages into the minute book;

(d) members of the fund are informed of their benefits and rights;

(e) contributions are timeously paid to the retirement fund;

(f) the rules and operations of the fund are not in violation of this Act; and

(g) the fund is managed in accordance with its registered rules.

Fiduciary Responsibilities of the Management Board 10. The management board shall ensure that the interest of members is protected at all times by: (a) acting with care, diligence and good faith; (b) avoiding conflict of interest; and (c) acting impartially.

Principal Officer of a Retirement Fund

11. (1) Every registered retirement fund shall have a principal officer who shall be a Swazi citizen resident in Swaziland.

(2) The principal officer shall be appointed by the management board of the retirement fund.

(3) If for any reason the Principal Officer is unable to fulfill any duty imposed on him by this Act, the management board may appoint another principal officer within 30 days of the principal officer becoming unable to perform his aforementioned duties.

(4) The name of the principal officer shall be advised in writing to the Registrar on registration, and, a change of principal officer shall be advised in writing to the Registrar within 30 days of the change being effected. Duties of the Principal Officer 12. The principal officer shall be responsible for: (a) receiving and processing all communication made to the retirement fund; (b) ensuring that all decisions of the management board are implemented;

114 (c) ensuring that all returns required in terms of this Act are submitted timeously; and

(d) all other administrative functions required in terms of the rules of fund and applicable legislation. Rules of a Retirement Fund 13. (1) The business of a retirement fund shall be governed by a set of rules which shall comply with the prescribed requirements in terms of the Regulations.

(2) No rules shall be of any force unless those rules have been approved, and endorsed by the Registrar after consultation with the Minister. (3) Subject to the provisions of this Act, the rules of a retirement fund shall be binding on the fund and its members, employer and officers and any person who has a claim on the fund.

(4) Every member of a retirement fund shall be entitled on request to inspect a copy of the rules of the fund.. (5) Notwithstanding the provisions of subsections (2) and (3), if the rules of the retirement fund are found to be in conflict with the provisions of this Act on any aspect, then the provisions of this Act shall apply.

Amendment of Rules

(1) A retirement fund may alter or rescind or make any addition to its rules provided that no such alteration, rescission or addition shall affect the rights of any creditor of the fund other than as a member.

(2) All proposed amendments shall be submitted to the Registrar for approval within 60 days of the management board's resolution approving the amendment.

(3) Any amendment to the rules which affect the financial condition of the fund shall be accompanied by a valuator's certificate certifying that the amendment will not render the fund financially unsound. (4) If the Registrar is satisfied that the amendment is not against the members' or employers interest, and not inconsistent with this Act, he shall register the amendment and he shall return an endorsed copy of the amendment to the fund.

(5) The resolution of the management board must state clearly the date on which the amendment will come into force and also the reason for the amendment and the Registrar shall not register any amendment which does not state the aforementioned date and reason.

(6) A fund may at any time consolidate its rules which shall take effect from a date decided by the management board: Provided that the Registrar is satisfied that the date will not prejudice the members' interest. Registered

Office of a Retirement Fund 15. (1) Every retirement fund shall maintain an office in the Kingdom of Swaziland which shall be its principal place of business.

(2) The address of the registered office shall be notified to the Registrar and any change shall be reported to the Registrar within 30 days of the change being effected.

(3) Any notice emanating from legal proceedings may be served on the retirement fund by delivery to the registered office or if that office has ceased to exist by delivery to the Registrar.

Contributions Due to a Retirement Fund

16 ( 1 ) All contributions due to a retirement fund in respect of its members shall be paid to the fund or to the person administering the fund's assets within 7 days of the expiry of the period for which it was due.

115 (2) The management board shall ensure that all moneys received by the fund are deposited in the fund's banking account or are paid to the person administering the fund's assets by the end of the first working day following the receipt of the moneys.

Retirement Fund Bank Accounts

17. (1) A retirement fund which maintains custody of all or part of its assets shall maintain a banking account with a banking institution registered in terms of the Financial Institutions Order, 1975, or an institution registered as a banking institution in terms of the laws of the country where its head office is maintained, provided that the institution has been granted permission by the Government of Swaziland to operate as a bank in Swaziland.

(2) Any accounts contemplated in subsection (1) shall be operated at a branch of the bank within the borders of the Kingdom of Swaziland.

PART IV STATUTORY OBLIGATIONS OF A RETIREMENT FUND Retirement Fund Assets

18. (1) All of a retirement fund's assets shall be registered in its own name and the fund shall retain custody of all its assets.

(2) Notwithstanding the provisions of subsection (1), a retirement fund's assets may be kept in the name of the retirement fund by one or more of the following institutions registered in a country approved by the Registrar in terms of the Regulations: (a) a stockbroker; (b) an Investment Manager; (c) an insurer; or (d) a banking institution.

(3) For purposes of subsection (2) "registered" means that the person has been duly authorised in terms of the laws of any of the countries mentioned, to carry on the business of stock broking, investment management, insurance or banking, as applicable, and the authorization has not been revoked.

(4) Notwithstanding the provisions of subsection (2), the Registrar may on application by an institution which does not qualify in terms of subsection (2), grant that institution permission to retain custody of a retirement fund's assets in the name of the retirement fund if the Registrar is satisfied that:

(a) the institution is adequately supervised by the authorities of the institution's country of origin; (b) the institution is financially sound; and (c) the institution is not under investigation for any reason. Retirement Fund Investments 19. (1) A retirement fund's investment shall be invested in accordance with the Regulations.

(2) A retirement fund may invest part of its assets in the business of an employer or in any subsidiary company or holding company of the employer provided that the amount invested shall not exceed the amount prescribed by the Regulations from time to time.

(3) A retirement fund shall not use any of its moneys nor shall the retirement fund be coerced or induced to:

(a) grant a loan to a sponsor, employer or member of the management board of the fund;

(b) invest any of its moneys with any institution or organisation with a view to securing a loan at a referential rate of interest or for securing any benefit monetary or otherwise for the benefit of the employer or any member of the management board or any other person; or

116 (c) use any of its assets as a collateral for a loan made by any institution or person to the employer or any member of the management board of the retirement fund. (4) Notwithstanding the provision of subsection (3), a retirement fund may grant a loan to a member as an investment, or issue a guarantee so that the member may obtain a loan, to enable the member:

(a) to purchase a dwelling, or to purchase land and erect a dwelling on it, for occupation by the member or a dependant of the member, provided that the aforementioned land and dwelling shall be registered in the name of the member or his spouse;

(b) to make additions or alterations to or to maintain or repair a dwelling which belong to the member or his spouse and which is occupied or will be occupied by the member or a dependant of the member;

(c) to erect a dwelling on land that the member or his spouse does not own but on which land the member or his spouse can exercise a right or privilege in terms of any customary or statutory law to build a dwelling for his own occupation or for occupation by his dependants.

(5) If the loan or guarantee contemplated in subsection (4) is to be utilised for the purpose of building a dwelling on Swazi National land, then before granting the loan the fund shall ensure that the written permission of the official custodians of the land has been obtained.

(6) A loan or guarantee contemplated in terms of subsection (4) to which the provisions of subsection (5) do not apply shall be secured by a first mortgage on the property being financed.

(7) A loan or guarantee contemplated in subsection (4) and to which the provision of subsection (5) do not apply shall not exceed 90% of the market value of the property concerned.

(8) A loan or guarantee contemplated in subsection (4) shall not exceed sixty percent of the value of the member's cash withdrawal benefit in the fund calculated as if the member has withdrawn on the date the loan was granted.

(9) A loan contemplated in subsection (4) shall be repayable over a period not more than and at a rate of interest not less than prescribed by the Registrar in terms of the Regulations.

(10) A person who contravenes any provision of this section commits an offence and shall, on conviction, be liable to a fine not exceeding El 00 000 or a term of imprisonment not exceeding 5 years:

Provided that if the person convicted is not a juristic person, he shall be subject to both the aforementioned fine and prison sentence as the court decides.

Financial Statements _

20. (1) Within 6 months after the end of the financial year of a retirement fund the principal officer shall submit to the Registrar a copy of the fund's audited financial statements.

(2) The principal officer shall also submit to the Registrar any special report by the auditor that refers to the financial statements.

(3) The principal officer shall supply the Registrar with any further information that he may request.

(4) If the Registrar is of the opinion that any document furnished by a registered fund in terms of subsection (1) does not correctly reflect the revenue and expenditure or the financial position of the fund, he may reject the document, and

(a) he shall notify the fund of the reasons for such rejection; and,

(b) the fund shall be deemed not to have furnished the said document to the Registrar:

117 Provided that in such event the Registrar may apply the provisions of section 71 of this Act, even though the period concerned may have expired before application is made for extension.

(5) When having the financial statements drawn up, the principal officer may take into account the provision of the Regulations.

(6) A person who does not comply with the provisions of subsection (1) commits an offence and shall be liable to a penalty of E500 which shall be increased by an amount of E10 for every working day that the provision is not complied with.

(7) A person who fails to comply with the provisions of subsections (2) or (3) commits an offence and shall, on conviction, be liable to the general penalty in terms of section 68 of this Act.

Appointment, Powers and Duties of Auditor

21. (1) Every retirement fund shall appoint an auditor for its business provided that such appointment shall be considered provisional and be of no force until the Registrar has approved the appointment in writing.

(2) An application for approval of the appointment of the auditor shall be made in terms of the Regulations within 30 days from the date of provisional appointment of the auditor.

(3) The Registrar may refuse to approve the appointment of an auditor or withdraw his prior approval if he considers this to be in the interest of the retirement fund:

Provided that the retirement fund may appeal to the Minister against a decision of the Registrar taken under this subsection.

(4) The Registrar shall not approve any director or employee of the employer or any other employer associated with the employer as an auditor except that where the employer is the Government of Swaziland, the Auditor General may be approved as the auditor.

(5) The auditor shall ensure that every financial statement of the retirement fund is properly drawn up and fairly reflects the financial position of the retirement fund.

(6) The auditor shall bring to the notice of the Registrar at any time any irregularity which in his opinion may lead to financial loss if not rectified.

(7) No person shall hinder the appointed auditor in the performance of his duties and for purposes of this subsection the withholding of information, the concealing of information, intentionally supplying wrong information and denial of access shall constitute hindrance in addition to any other act that a court decides constitutes hindrance.

(8) The auditor shall satisfy himself that the documents or statement of assets to be submitted in terms of the Regulations fairly reflect the financial position of the retirement fund.

(9) The auditor shall satisfy himself that the retirement fund's investments comply with the Regulations.

(10) If the appointed auditor does not satisfactorily fulfil any provision of this section where he is required to apply his skill or if any person contravenes the provisions of subsection (7), he commits an offence and shall, on conviction, be liable to the general penalty in terms of section 68 of this Act.

Appointment, Powers and Duties of Valuator

22. (1) Every retirement fund shall appoint an actuary as a valuator provided that such appointment shall be considered provisional and be of no force until the Registrar has approved the appointment in writing.

(2) An application for approval of the appointment of a valuator shall be made in terms of the Regulations.

118 (3) No person shall hinder the valuator in the performance of his duties and, for purposes of this subsection, the withholding of information, the concealing of information, the supplying of information and the denial of access shall constitute hindrance in addition to any other act that the court may decide constitutes hindrance.

(4)The appointed valuator shall be responsible for valuing the fund's liabilities and the fund's assets for actuarial purposes according to generally accepted actuarial practice and producing a report thereon.

(5) The appointed valuator shall bring to the Registrar's notice any practice or irregularity which he considers might harm the members' interest.

(6) A valuator shall on the termination of his appointment by the retirement fund bring to the Registrar's attention any irregularity that he is aware of which might prejudice the members of the fund.

(7) A person who contravenes any one or more of the provisions of subsections (3), (5) or (6), commits an offence and shall, on conviction, be liable to the general penalty in section 68 of this Act.

(8) If the appointed valuator does not satisfactorily fulfill any provision of this section where he is required to apply his skills or if any person contravenes the provisions of subsection (3), he commits an offence and he shall, on conviction, be liable to the general penalty in terms of section 68 of this Act.

Actuarial Valuations

23. (1) After the commencement <|f this Act the management board shall ensure that an actuarial valuation of the fund is carried out by the funds appointed valuator as at a date not later than the date of the fund's third financial year end since the commencement of this Act, and thereafter the management board shall ensure that an actuarial valuation of the fund is carried out at least once every three years.

(2) A written report shall be issued by the valuator on the findings of the valuation.

(3) Each actuarial report shall be deposited with the Registrar within 12 months from the date to which it relates.

(4) The Registrar may, at his discretion, grant an extension of time in terms of section 71 of this Act for submission of the valuator's report.

(5) The management board shall ensure that the report contemplated in this section is made available on demand to every employer whose employees are members of the fund.

(6) The Registrar may direct that the management board cause an actuarial valuation to be carried out at any time if the Registrar is of the opinion that the financial condition of the fund needs to be investigated.

(7) The administrator of a fund shall submit to the Registrar at the same time that the valuator's report is submitted a statement to the effect that, to the knowledge of the administrator, the data supplied to the valuator for the purposes of the valuation was complete and accurate in every respect.

(8) If the Registrar is of the opinion that the report contemplated in subsection (1) does not correctly reflect the financial condition of the fund in any respect, he may reject the report and,

(a) he shall notify the fund of the reasons for such rejection; and

(b) the fund shall be deemed not to have furnished the said document to the Registrar:

Provided that in such event the Registrar may apply the provisions of section 71 of this Act even though the period concerned may have expired before application is made for extension.

119 Amalgamation and Transfer

24. (1) The business or part of a business of a retirement fund may only be merged with the business of another retirement fund.

(2) No such merger contemplated in subsection (1) shall be effected until the Registrar has given his approval in writing.

(3) Every application for approval of a proposed merger shall be made to the Registrar in terms of the Regulations.

(4) The parties to the proposed merger shall supply the Registrar with any further information that he may request and the parties shall carry out any special investigations that the Registrar may request and supply him with a report thereon.

(5) If the Registrar is satisfied that the provisions of the Regulations have been complied with and that any additional requests made by him in terms of subsection (4) have been adequately carried out to his satisfaction, he shall issue a certificate approving the merger of the business for which approval had been sought.

(6) A person who contravenes any provision of this section commits an offence and shall, on conviction, be liable to the general penalty in terms of section 68 of this Act.

Impaired Financial Soundness of a Retirement Fund

25. ( 1 ) If any return reveals in the Registrar's opinion that a fund is not in a sound financial condition, the Registrar shall request the management board to submit a scheme for the restoration of the fund to financial soundness.

(2) The Registrar may ask the management board to make any alteration to any scheme contemplated in subsection (1).

(3) If the Registrar is satisfied that the scheme contemplated in subsection (1), is reasonable, he shall authorise the scheme to proceed and the management board shall then implement the scheme.

(4) If the Registrar is of the opinion that the financial condition of the fund is not repairable or if he is of the opinion that the management board is unable to effectively implement the scheme referred to in subsection (1) then he shall act against the fund in terms of section 35 or section 41 of this Act. PART V EXEMPTION FROM CERTAIN PROVISIONS OF PART IV OF THIS ACT Registrar's Authority and Allowable Exemptions

26. (1) The Registrar is hereby empowered to consider and grant a request from a retirement fund for exemption from certain of the provisions of Part IV provided that any request for exemption shall be limited to those exemptions specifically allowed by subsection (2).

(2) The Registrar may only consider a request for exemption from the provisions of one or more of section 21, 22 or 23 of this Act.

(3) A person desiring exemption shall supply the Registrar with all the information that the Registrar may need to the Registrar's satisfaction.

(4) The Registrar may at any time withdraw any exemption that may have been granted by his authority in terms of this section or attach any additional conditions thereto.

120 (5) The Registrar shall inform a retirement fund in writing of his decision to withdraw any exemption in terms of this section or to add any conditions thereto and the withdrawal or additional condition shall take effect 7 working days from the date of the Registrar's letter.

(6) The Registrar shall only consider written applications for exemption desired in terms of this section.

Exemption from the Provisions of Section 21

27. (1) The Registrar may exempt a fund from the provision of section 21 of this Act if the fund satisfies all of the following conditions:

(a) the assets of the fund are in their entirety maintained in the name of the retirement fund by one or more insurers;

(b) all contributions, investment income and any other moneys from whatever source due to the fund shall be paid directly to one or more insurers;

(c) the payment of any benefit from the fund and any other lawful disbursement shall be made by one or more insurer!; and

(d) the fund has entered into an agreement with a single insurer whereby that insurer has agreed to act as administrator for purposes of this Act.

(2) An exemption granted in terms of this section shall be valid only as long as the conditions under which it is granted are met or until the Registrar withdraws the exemption granted.

Alternative Obligations for Funds Granted Exemption in Terms of Section 27

28. (1) A fund that has been granted an exemption in terms of Section 27 shall supply to the Registrar any other information that the Registrar may request in addition to any information requested in this section.

(2) The fund shall, within 6 months from its financial year end, supply the Registrar with:

(a) a certificate by the administering insurer stating that the fund has fulfilled the conditions for exemption as stated in section 27; and

(b) its financial statements drawn up by the administering insurer.

Exemption from the Provision of Sections 22 and 23 of the Act 29. (1) The Registrar may exempt a fund from the provisions of sections 22 and 23 of the Act if the fund satisfies the following conditions:

(a) the member's benefits in the fund, other than those secured by an insurer, is an amount or is secured by an amount made up of actual contributions to the fund plus direct investment returns on those contributions. The investment return may be smoothed and withdrawal profits may be taken into account (b) the fund does not maintain in its books a liability for any pension that has been granted;

(d) the fund shall submit to the Registrar, at least once every three years or such shorter intervals as the Registrar may determine, a certificate by an actuary certifying that:

(i) the benefit structure according to the rules of the fund meets the requirements of paragraphs (a), (b) and (c);

121 (ii) based on the information at his disposal he is satisfied that the provisions of paragraphs (a), (b) and (c) have been complied with and that he has no reason to believe that they are in danger of not being complied with;

(iii) in his opinion the appointment of a valuator and triennials valuations as contemplated in section 23 are unnecessary;

(iv) the method used by the fund in allocating the assets and investment income to the members is fair and equitable and that no individual member or group of members are given preferential consideration;

(v) he has satisfied himself that if the fund uses a smoothed method of bonus allocation, any reserve that has been established for this purpose and any returns thereon have not been appropriated for any other purpose; and (vi) in his opinion, if the fund uses a smoothed rate of bonus allocation, the rate granted is reasonable in the light of the actual rates earned and the reserves being maintained by the fund for the purposes of bonus allocation.

(2) An exemption granted in terms of mis section shall be valid only as long as the conditions under which it was granted is met or until the Registrar withdraws the exemption granted.

Alternative Obligation for Funds that have been Granted Exemptions in Terms of Section 29

30. (1) If the Registrar is satisfied that the financial methods adopted by a fund are such as to render periodical investigations by a valuator unnecessary, he shall, at the request of such fund, authorise the fund to prepare and furnish to the Registrar a statement of its liabilities and assets in lieu of causing its financial condition to be investigated and reported upon by a valuator in terms of section 23. (2) Any statement prepared in terms of subsection (1) shall include the following particulars, namely: (a) the nature and amount of the liabilities and contingent liabilities of the fund;

(b) a full description of each asset held by the fund together with such particulars in respect of each such assets as would enable an independent person to estimate the value of such asset on a sale between a willing seller and a willing buyer: Provided that if a compliance with the requirements this paragraph would result in unduly voluminous returns, the fund concerned may group various classes of assets together, or otherwise abridge the statement in such manner as the Registrar may approve;

(d) the aggregate value placed on the assets for purposes of the statement; and (e) particulars of any pledge, hypothecation or other encumbrance of the assets of the fund.

(3) The statement prepared in terms of subsection (1) shall be accompanied by a report by the auditor of the fund , and the auditor shall in his report state: ,

(a) in what manner and to what extent he has satisfied himself as to the amount of the liabilities and contingent liabilities shown on the statement; (b) in what manner and to what extent he has satisfied himself as to the existence of the assets shown in the statement;

(c) to what extent he has satisfied himself that the particulars of such assets which are shown on the statement are correct;

(d) whether or not, in his opinion, the basis of valuation of each of the various kinds of assets adopted by the fund is financially sound;

122 (e) whether or not, in his opinion, the fund in a sound financial condition;

(f) if he is of the opinion that the fund is not in a sound financial condition in what respect the condition of the fund is in his opinion unsound; and ' (g) such other particulars as he deems relevant to the purposes of this Act. PART VI STATUTORY RESTRICTIONS ON THE DISPOSAL OF RETIREMENT FUND BENEFITS

Retirement Benefits not Reducible, Transferable or Executable

31. (1) Save to the extent permitted by this Act and the Income Tax Order, 1975, no benefit or right thereto which arose in respect of contributions made by or on behalf of a member of a retirement fund, shall be capable of being reduced, transferred, ceded, pledged or hypothecated or be liable to attachment or subject to any form of execution under a judgement or order of court or be capable of being taken into account in the determination of a judgement debtor's financial position.

(2) If a person attempts to transfer, cede, pledge or hypothecate a benefit or right thereto, the benefit shall, as the management board may direct, be withheld thereto or suspended:

Provided that the management board may direct that the benefit or part thereof be paid to one or more of the members dependants or to a guardian or trustee for the benefit of such dependants during such period as they may determine.

(3) A person who contravenes the provision of this section commits an offence and shall, on conviction, be liable to the general penalty in terms of section 68 of this Act.

Allowable Deductions from Retirement Benefits

32. (1) A retirement fund may deduct an amount from the member's benefit in respect of a debt arising from a housing loan or guarantee granted to or in respect of a member in terms of section 19.

(2) A retirement fund may deduct an amount from the member's benefit in respect of: (a) an amount representing the loss suffered by the employer due to any unlawful activity of the member and for which judgement has been obtained against the member in a court or a written acknowledgement of culpability has been signed by the member and provided that the aforementioned written acknowledgement is witnessed by a person selected by the member and who has had not less than eight years of formal education;

(b) an amount for which the employee is liable under a guarantee issued by the employer for purposes of obtaining a housing loan:

Provided that an original notarised document exists which confirms that the guarantee was made.

(3) If for any reason, except death, a member is unable or unwilling to acknowledge any debt contemplated in subjection (2) (a), then the employer shall apply to the court for an order authorising him to make a deduction from the member's benefit up to an amount equal to the debt.

Death of a Retirement Fund Member

33. (1) Notwithstanding anything to the contrary contained in any law or in the rules of a registered fund, any benefit payable by such a fund in respect of a deceased member, shall, subject to any guarantee issued or loan made in terms of section 19 of this Act, not form part of the assets in the estate of such a member, but shall be dealt with as in this section.

123 (2) If, within twelve months from the death of the member, the fund becomes aware of a dependant or dependants of the member, the benefit shall be paid to such dependant or dependants in a manner that is deemed equitable by the management board.

(3) If the fund does not become aware of or cannot trace any dependant of the member within twelve months from the death of the member, and the member has designated in writing to the fund a nominee who is not a dependant of the member, to receive the benefit or a specified portion of the benefit, the benefit or such portion of the benefit shall be paid to such nominee - provided that where the aggregate amount of the debts in the estate of the member exceeds the aggregate amount of the assets in his estate, an amount of the benefit equal to the difference between the aggregate amount of debt and the aggregate amount of assets shall be paid into the estate of the member and the balance of the benefit or the balance of such portion of the benefit as specified by the member in writing to the fund shall be paid to the nominee.

(4) If a member has a dependant and the member has also designated in writing to the fund a nominee to receive the benefit or a specified portion of the benefit, the fund shall within twelve months from the death of such member pay the benefit or such portion thereof to such dependant or nominee in such proportions as the board may deem equitable.

(5) If the fund does not become aware of or cannot trace any dependant of the member within twelve months from the death of the member, and if the member has either not designated in writing to the fund a nominee or if the member has designated a nominee to receive a portion of the benefit, the benefit or the remaining only portion of the benefit after payment to the designated nominee, shall be paid into the estate of the member, or, if no inventory in respect of the member has been received by the court, the fund shall pay the monies into the Insurance and retirement benefit trust account.

(6) For the purposes of this section, a payment by a registered fund to a dependant shall be deemed to include a payment made by the fund to a trustee for the benefit of a dependant contemplated in this section. (7) Any benefit dealt with in terms of this section, payable to a minor dependant or minor nominee, may be paid in more than one payment in such amounts as the management board may from time to time consider appropriate and in the best interest of such dependant or nominee- provided that interest at a reasonable rate, having regard to the investment return earned by the fund, shall be added to the outstanding balance at such times as the management board may determine- provided further that any balance owing to such a dependant or nominee date on which he or she attains majority or dies, whichever occurs first, shall be paid in full.

(8) A benefit dealt with in terms of this section, payable to a major dependant or major nominee, may be paid in more than one payment if the dependant or nominee has consented thereto in writing:

Provided that:

(a) the amount of the payments, intervals of payment, interest to be added and other terms and conditions are disclosed in a written agreement; and

(b) the agreement may be cancelled by either party on written notice not exceeding 90 days. (9) If the agreement contemplated in subsection (8) (a) is cancelled, the balance of the benefit shall be paid to the dependant or nominee in full.

Insolvency of a Retirement Fund Member -

34. Notwithstanding anything to the contrary contained in any law on the insolvency of a person, any benefit which arose as a result of that person's membership of a retirement fund shall not be considered as forming part of the estate of that person and may not be attached or appropriated by any person.

PARTVII INSPECTION, JUDICIAL INTERVENTION AND WINDING UP Registrar's Powers of Inspection

124 35. (1) The Registrar may cause an inspection to be made by an inspector appointed by him in writing, of the business of any retirement fund.

(2) The Registrar shall inform the fund in writing of his decision to cause an inspection to be made and the fund shall within 7 working days of the receipt of the Registrar's communication, ensure that it is ready to be inspected by ensuring that all its documents, electronic records, correspondence, financial information and officers will be accessible to the inspector.

(3) The Registrar may use any power vested in him by the Insurance Act, 2005, and authorised for use for the purposes of this Act by virtue of section 4 of this Act.

(4) Notwithstanding any provision of the Insurance Act, 2005, a person who commits an offence in the circumstances contained in Section 25 of that Act, commits and offence and shall, o conviction, be liable to the general penalty in terms of section 68 of this Act.

Inspector's Report

36. The inspector shall prepare a report for the Registrar on the entire business of the retirement fund and the report shall include:

(a) the integrity of the management of the fund;

(b) the financial condition of the fund, including compliance with deadlines for the submission of statutory returns;

(d) recommendations on the course of action needed to rectify any malpractice discovered; and

(e) recommendations on any criminal procedure that should be started.

Registrar's Course of Action

37. (1) The Registrar is hereby empowered to consider and implement any recommendation made by the inspector.

(2) The Registrar may take any course of action that he considers necessary in addition to the recommendations of the inspector and shall include one or more of the following:

(a) act against the fund in terms of section 41. (b) initiate criminal proceedings against the officers of the fund, its employees, administrator, sponsor, auditor, valuator or any other person whom he considers liable as a result of the inspection. (c) apply to the high court for an order empowering him to appoint an interim administrator to run the business of the retirement fund; or (c) impose additional conditions on the continuing registration of the retirement fund. Appointment of an Interim Administrator 38. (1) The Registrar may apply to the court for an order empowering him to appoint an interim administrator to run the business of a retirement fund as a result of any inspection authorised by him and if he is of the opinion that this action serves the members' interest.

(2) The Registrar may apply to the high court for an order empowering him to appoint an interim administrator to run the business of a retirement fund if prima facie evidence exists which indicates that the interest of the members is being harmed, provided that, the Registrar shall within 14 working days of being granted the order appoint an inspector in terms of section 35.

(3) The appointment of the interim administrator shall remain of force until the Registrar terminates his appointment in writing.

Powers and Duties of the Interim Administrator 125 39. (1) The interim administrator shall be vested with all the powers that were vested in the management board and principal officer of the fund and the management board and principal officer shall thereafter for the duration of the interim administrator's appointment not exercise any of their powers or perform any of their duties unless requested by the administrator to do so.

(2) The Registrar may grant the interim administrator any additional powers that he considers necessary and amend any existing powers that may have been conferred on him by virtue of subsection (1).

(3) The interim administrator's appointment shall apply to the entire business of the retirement fund.

(4) The interim administrator shall ran the business of the retirement fund in accordance with the provisions of this Act. (5) The interim administrator shall assist the inspector in the carrying out of his duties. Voluntary liquidation of a Retirement Fund

40. (1) Subject to the provisions of this section, a registered fund may be liquidated in such circumstances (if any) as may be specified for that purpose in its rule and in the manner provided by the rules, and the assets of the fund shall, subject to the said provisions, in that event be distributed in the manner provided by the rules.

(2) A retirement fund may be dissolved in circumstances and in the manner prescribed in its rules, if the Registrar has refused to register the fund, if the fund has not applied for registration or if the registration of the fund has been cancelled and the Registrar has not informed the fund that he wishes to start proceedings to liquidate the fund.

(3) Notwithstanding the provisions of subsection (1) a retirement fund whose registration has been refused or cancelled by the Registrar shall be liquidated in terms of the provision of this section:

Provided that:

(a) its rules (if any) for purpose of liquidation shall have the same force as the rules of a registered retirement fund; and

(b) the Registrar shall make any modifications to any part of the rules that he deems necessary.

(4) A liquidator shall be appointed in the manner directed by the rules, or, if the rules do not contain directions as to such appointment, by the board, but such appointment shall be subjected to the approval of the Registrar, and the period of liquidation shall be deemed to commence as from the date of such approval.

(5) During the liquidation the provisions of this Act shall continue to apply to the fund as if the liquidator were the board.

(6) The liquidator shall deposit with the Registrar the preliminary accounts prescribed by the Regulations, and signed and certified by him as correct, showing the assets and liabilities of the fund at the commencement of the liquidation and the manner in which it is proposed to realise the assets to discharge the liabilities, including any liabilities and contingent liabilities to or in respect of members.

(7) In discharging the liabilities and contingent liabilities to or in respect of members referred to in subsection (6) full recognition shall be accorded to-

(a) the rights and reasonable benefit expectations of the persons concerned; and

(b) additional benefits the payment of which by the fund has become an established practice.

(8) The Registrar may, in his discretion, direct the liquidator to furnish a report, drawn up by an independent valuator or other competent person nominated by the Registrar, upon fee preliminary account and preliminary balance sheet.

(9) The preliminary accounts, preliminary balance sheet and report (if any) referred to in subsection (6) shall lie open at the office of the Registrar, and at the registered office of such fund, and where the registered office of the fund is in any district other than the district wherein the office of the Registrar is situated at the office of the magistrate of the district in which the registered office of the fund is situated for inspection by interested person for a period of thirty days.

126 (10)The liquidator shall submit to the Registrar, a scheme for the liquidation and such scheme shall include: (a) the manner in which members' interest in the fund is to be addressed; (b) the manner in which creditors' claims on the fund are to be settled; (c) the manner in which any surplus assets are to be disposed of; (d) the manner in which any shortfall is to be addressed; and

(e) whether all members have been treated equally or whether special considerations apply to certain individuals.

(11) The liquidator shall at least 30 days before the liquidation is carried out, publish in the Gazette and at least two newspapers of general circulation in Swaziland, notice of the pending liquidation and he shall in the notice provide details of -

(a) where the documents referred to in subsection (9) and the scheme of liquidation referred to in subsection (10) may be inspected;

(b) the date of the liquidation;

(d) where objections can be lodged.

(12) If no objection is lodged with the Registrar in terms of subsection (11), the Registrar shall direct the liquidator to complete the liquidation.

(13) If objections are lodged with the Registrar in terms of subsection (11), the Registrar may, after considering the said objection, direct the liquidator to amend the preliminary account or give such other directions relating to the liquidation as he thinks fit, provided such directions are not inconsistent with the rules of the fund or this section, and any such directions shall be binding upon the liquidator.

(14) The liquidator shall, within fourteen days of the receipt by him of any direction of the Registrar in terms of subsection (13), post a copy thereof to every member, shareholders and creditor of the fund, and the liquidator or any other person aggrieved by any such direction of the Registrar may apply by motion to the court within twenty-eight days after such direction has been communicated to the liquidator, for an order to set aside the Registrar's decision, and the court may confirm the said decision or make such order as it think fit.

(15) If the Registrar is satisfied that his directions, in so far as they have not been varied or set aside by the court, have been given effect to, he shall direct the liquidator to complete the liquidation.

(16) The liquidator shall, within thirty days after the completion of the liquidation, lodge with the Registrar a final account and a final balance sheet, signed and certified by him as correct showing the assets and liabilities of the fund at the commencement of the liquidation and the manner in which the assets have been realized and the liabilities (including any liabilities and contingent liabilities to or in respect of members) have been discharged. 4 (17) The provision of the Companies Act, 1912, shall apply to the dissolution of a fund in terms of this section, in so far as the said provisions relate to a voluntary winding-up in terms of the said Act, and in so far as the provisions are applicable and not inconsistent with any provisions of this Act. (18) All claims against the fund shall be proved to the satisfaction of the liquidator, subject to right of appeal to the court, and the liquidator may require any claim to be made on affidavit.

(19) If the Registrar is satisfied that the said account and balance sheet are correct and that the liquidation has been completed, he shall cancel the registration of the fund and thereupon the fund shall be deemed to be liquidated.

(20) No scheme for voluntary liquidation shall be implemented unless it has been approved by the Registrar. Judicial Winding up of a Retirement Fund 41. (1) The Registrar may apply to the Court for an order directing the winding up of a retirement fund if: (a) he is of the opinion that the financial condition of a fund is irreparable; 127 (b) he has refused to register the retirement fund or he has cancelled the registration of the retirement fund in terms of section 6; or (c) as a result of any inspection carried out by his authority in terms of section 35 he has found cause to have the fund wound up.

(2) A creditor of the fund who has failed to obtain payment of a claim through the means provided by the law may apply for the fund to be wound up.

(3) The provisions of the Companies Act, 1912, shall apply to the winding up of a fund under this section in so far as they are applicable and not inconsistent with this Act; provided that the court may modify the provision of the Companies Act, 1912, for purposes of the liquidation of the fund if the court is satisfied after considering the circumstances of the fund that such modification will not prejudice the interest of the members and creditors of the fund.

(4) In giving any order or direction under this section the court shall have regard to any recommendation which may have been made by the fund's valuator, if any, and accord full recognition to the rights and reasonable benefit expectation of the persons concerned and to additional benefits the payments of which by the fund has become an established practice.

(5) The Registrar may make recommendations to the court concerning the proposed winding up of the fund and the court may direct that those recommendations be adopted even if they are in conflict with the Companies Act, 1912, if the court decides that the members' interest are best served by the Registrar's recommendations.

(6) The liquidator appointed in terms of subsection (3) shall give to the Registrar such information as the Registrar may require from time to time and shall, whenever he intends to apply to the court for instructions, inform the Registrar who shall be entitled to be heard personally or by a representative at any such application, and may himself make an application to the court with reference to the winding-up.

(7) The liquidator shall, at least 30 days before the liquidation is carried out, publish in the Gazette and at least two newspapers of general circulation in Swaziland, notice of the pending liquidation and shall in the notice provide details of-

(a) where the accounts and scheme for the liquidation can be inspected;

(b) the date of the liquidation;

(c) the name, telephone number and postal and street address of the person who can be contacted for more information; and,

(d) the place at which objections may be lodged.

Special Provisions Relating to Liquidation of Funds 42. (1) In applying the provisions of the Companies Act, 1912, in terms of section 40 or 41, the members of the fund shall be treated as deferred creditors, and their claims against the fund in their capacity as members shall not be settled until the debts of ordinary creditors have been paid. (2) If a Fund has a share capital, the liability of a shareholder in the case of liquidation under the aforementioned sections shall either be limited to the amount (if any) unpaid on any share held by him, or if the rules so provide, his liabilities shall be unlimited. PART VIII CONSIDERATION AND ADJUDICATION OF COMPLAINTS Submission and Consideration of Complaints

43. (1) Notwithstanding the provision of the rules of any fund, a complainant shall have the right to lodge a, written complaint with a fund or an employer who participates in a fund.

128 (2) A complaint so lodged shall be properly considered and replied to in writing by the fund or the employer who participates in the fund within 30 days after the receipt thereof.

(3) If the complainant is not satisfied with the reply contemplated in subsection (2), or if the fund or the employer who participates in the fund fails to reply within 30 days after the receipt of the complaint, the complainant may lodge the complaint with the Adjudicator.

Establishment of Office of Retirement Funds Adjudicator

44. (1) There is hereby established an office which shall be known as the office of the Retirement Funds Adjudicator. (2) The function of the Office shall be performed by the Retirement Funds Adjudicator. Appointment of Adjudicator

45. (1) The Minister shall, after consultation with the Retirement Funds Board and in compliance with the laws governing the public service appoint a person as the Retirement Funds Adjudicator, hereinafter referred to as the Adjudicator.

(2) No person shall be appointed as Adjudicator unless he is qualified to be admitted to practise as an advocate or as an attorney under the Legal Practitioners Act, 1964, and:

(a) for an uninterrupted period of at least 10 years practised as an advocate or an attorney; or

(c) possess such other experience as renders him suitable for appointment as Adjudicator. (3) The Adjudicator shall be appointed for a period of three years and may be reappointed on expiry of his or her term of office.

(4) The Adjudicator may at any time resign as Adjudicator by tendering his or her resignation in writing to the Minister.

Provided that the resignation shall be addressed to the Minister at least three calendar months prior to the date on which the Adjudicator wishes to vacate office, unless the Minister allows a shorter period.

(5) The Minister may remove the Adjudicator from office on the ground of misbehaviour, incapacity or incompetence, after consultation with the Retirement Funds Board.

Main Object of Adjudicator

46. (1) The main object of the Adjudicator shall be to dispose of complaints lodged in terms of section 43 of this Act in a procedurally fair, economical and expeditious manner.

Disposal of Complaints 47. (1) In order to achieve his or her main object, the Adjudicator:

(a) shall, subject to paragraph (b), investigate any complaint and may make the order which any court of law may make; and

(b) may, if it is expedient and prior to investigating a complaint, require any complainant first to approach an organisation established for the purpose of resolving disputes in the pension funds industry or part thereof, and approved by the Registrar.

(2) Any complaint dealt with in terms of subsection (1) (b) shall be recorded by the Adjudicator and shall, for purposes of this section, be deemed to be a receipt of a complaint.

129 (3) If the complaint, dealt with in terms of subsection (1) (b), is not resolved, the complainant may again lodge the complaint with the Adjudicator, who shall deal with it in terms of subsection (1) (a).

Opportunity to Comment

48. Where the Adjudicator intends to conduct an investigation into a complaint he or she shall afford the fund or person against whom the allegations contained in the complaint are made, the opportunity to comment on the allegations.

Parties to Complaint 49. The parties to a complaint shall be: (a) the complainant; (b) the fund or person against whom the complaint is directed;

(c) any person who has applied to the Adjudicator to be made a party and who has a sufficient interest in the matter to be made a party to the complaint;

(d) any other person whom the Adjudicator believes has a sufficient interest in the matter to be made a party to the complaint. Jurisdiction and Prescription

50. (1) The Adjudicator shall, subject to section 51, investigate a complaint notwithstanding that the complaint relates to a matter which arose prior to the commencement of this Act.

(2) The Adjudicator shall not investigate a compliant if, before the lodging of the complaint, proceedings have been institute^ in any civil court in respect of a matter which would constitute the subject matter of the investigation.

(3) Receipt of a complaint by the Adjudicator shall interrupt any running of prescription in terms of any Act or the rules of the fund in question.

Time limit for Lodging of Complaints

51. (1) The Adjudicator shall not investigate a complaint if the act or omission to which it relates occurred more than three years before the date on which the complaint is received by him or her in writing.

(3) The Adjudicator, may on good cause shown or of his or her own motion-

(a) either before or after expiry of any period prescribed by this Part, extend such period; or

(b) condone non-compliance with any time limit prescribed by this Part.

Procedure for Conducting Investigation

52. (1), The Adjudicator may follow any procedure which he or she considers appropriate in conducting an investigation, including procedures in an inquisitorial manner.

(2) Notwithstanding any provision of the Insurance Act, [2003], the Adjudicator may obtain copies of any document or correspondence contained in the files of the Registrar.

Legal Representation

130 53. No party shall be entitled to legal representation at proceedings before the Adjudicator except where the Adjucator has given permission for the parties to obtain legal representation or where the Adjucator has requested the parties to obtain legal representation.

Record of Proceedings

54. (1) The Adjudicator shall ensure that a permanent record of the proceedings relating to the adjudication of a complaint, and the evidence given, is kept whether in writing or by mechanical or electronic means.

(2) Any member of the public may obtain a readable copy of the record on payment of a fee determined by the Adjudicator.

(3) The Registrar may, for purposes of the performance of his or her functions in terms of this or any other Act, rely on a copy of the record without the need of any further proof.

Statement by Adjudicator Regarding Determination

55. After the Adjudicator has completed an investigation, he or she shall send a statement containing his or her determination and the reasons therefore, signed by him, to all parties concerned as well as to the clerk or Registrar of the court which would have had jurisdiction had the matter been heard by a court.

Interest on Amount Awarded

56. Where a determination consists of an obligation to pay an amount of money, the debt shall bear interest as from the date and at the rate determined by the Adjudicator.

Enforceability of Determination 57. (1) A determination of the Adjudicator shall be deemed to be civil judgement for any court of law had the matter in question been heard by such court, and shall be so noted by the clerk, or the Registrar of the court, as the case may be. 2) A writ or warrant of execution may be issued by the clerk or the Registrar of the court in question and executed by the sheriff of such court after expiration of a period of six weeks after the date of the determination, on condition that no application contemplated in section 58 has been lodged. Access to Court 58. (1) A party who feels aggrieved by a determination of the Adjudicator may, within weeks after the date of the determination, apply to the division of the court which has jurisdiction, for relief, and shall at the same time give written notice of his intention so to apply to the other parties to the complaint.

(2) The division of the court contemplated in subsection 58.1 shall have the power to consider the merits of the complaint in question, to take evidence and to make any order it deems fit.

Powers of Adjudicator 59. The Adjudicator may with the concurrence of the Registrar:

(b) in order to perform his functions, enter into an agreement with any person for the performance of any specific act or function or the rendering of specific services;

(d) employ persons to assist in the performance of his functions;

131 (e) obtain such professional advice in the performance of his functions as may be reasonably required;

(f) subject to such conditions as he may determine , delegate any of his functions contemplated in section 46, to an employee of his Office;

(g) in general, do anything which is necessary or expedient for the achievement of his or her objects and the performance of his functions.

Expenses of the Adjudicator

60. (1) The financial year end of the Office of the Adjudicator shall be the last day of February in each year.

(2) Before the commencement of each financial year, the Adjudicator shall submit to the Registrar an estimate of the expenditure of his office for the next financial year.

(3) The estimate contemplated in subsection (2) shall take into account any justifiable expenses that the Adjudicator might incur in the performance of the duties imposed on him in terms of this Act.

(4) The estimate shall be completed A least 60 days before the commencement of the next financial year and submitted to the Registrar for approval and the Registrar may ask the Adjudicator to make any adjustments that he considers necessary.

(5) After the Registrar had given his approval, the actual expenditure by the Office of the Adjudicator may not exceed the estimates without the Registrar's approval.

(6) The expenses of the Office of the Adjudicator shall be paid by the office of the Registrar of Retirement Funds.

(7) The Adjudicator shall ensure that any accounts payable are brought to the attention of the Registrar timeously.

Remuneration and Terms and Conditions of Employment of Adjudicator and Employees

61. (1) The remuneration and other terms and conditions of employment of-

(a) the Adjudicator shall be determined by the Minister in consultation with the Retirement Funds Board;

(b) an employee of the office of the Adjudicator shall be determined by the Adjudicator with the concurrence of the Retirement Funds Board.

(2) Any remuneration of the Adjudicator and his employees shall be paid out of the state revenue fund which shall be reimbursed by the Registrar's levies account. Report of Adjudicator

62. The Adjudicator shall each year within six months after the end of his or her financial year, submit a report to the Minister on his activities during the financial year.

Offences and Penalties 63. A person who: (a) insults the Adjudicator; (b) anticipates a determination of the Adjudicator in any manner calculated to influence the determination; (c) wilfully interrupts any proceeding conducted by the Adjudicator or misbehaves himself or herself in any manner in the place where the proceedings are being held; or (d) in connection with a complaint does anything which, if done before a court of law, would have constituted contempt of court;

132 commits an offence and shall, on conviction, be liable to a fine of E5 000 or to imprisonment for a period not exceeding three months.

Limitation of Liability 64. The Adjudicator, or any of his or her employees, shall not be liable in respect of anything done or omitted to be done in good faith in the exercise of a power or the performance of the duty conferred or imposed by or under this Act.

Liquidation 65 The Office of the Adjudicator shall not be placed in liquidation except by Act of Parliament. PART XI GENERAL PROVISIONS

Administrators, Custodians and Investment Managers 66. (1) The trustees may, appoint an administrator for the fund from amongst the following: (a) an insurance company; (b) a registered insurance broker; or (c) any other entity approved by the Registrar. (2) An administrator:

(a) may not make any investment decisions for the fund, unless the administrator is also appointed as an investment manager by the trustees; and

(b) shall maintain professional indemnity insurance and a fidelity guarantee in such amounts as the Registrar determines appropriate.

(3) The trustees may, in the manner provided in the retirement fund rules, appoint one or more investment managers for the fund from amongst the following:-

(a) an insurance company;

(b) a registered insurance broker;

(4) An investment manager shall maintain professional indemnity insurance and a fidelity guarantee in such amounts as the Registrar determines appropriate.

(5) The trustees may, in the manner provided in the retirement fund rules, appoint an entity listed in subsection (3) as custodian for the assets of the retirement fund.

(6) Any administrator, custodian or investment manager shall exercise the utmost good faith and the care, skill, prudence and diligence that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. This obligation shall be in addition to any other obligations or duties of the administrators, custodians or investment managers that may arise under other law.

(7) The retirement fund shall notify the Registrar in writing of the appointment of the administrator and any custodian or investment manager and shall also notify the Registrar of any change in administrator, custodian or investment manager.

Exemptions

133 67 (1) the Registrar may exempt a foreign retirement fund from any or all of the provisions of this Act, other than the provisions of Sections 3 and 5, if the Registrar is satisfied that:-

(a) the number of members who are ordinarily resident in Swaziland is not a significant proportion of the total membership;

(b) the rules of the retirement fund are not less favourable to members ordinarily resident in Swaziland than to other members, taking into consideration differences in the conditions of service;

(d) through the furnishing of adequate security by the retirement fund or otherwise, the fund will pay in accordance with the rules the benefits promised to members ordinarily resident in Swaziland.

(2) A foreign retirement fund seeking exemption under this Section shall submit an application for exemption as part of its application for registration under Section 5.

(3) In addition to the information required under Section 5, the foreign retirement fund shall submit a certificate of registration or other evidence that the retirement fund has been authorised to operate or conduct activities by the entity responsible for regulation or supervision of retirement funds in the jurisdiction in which the retirement fund primarily operates or conducts its activities.

(4) A foreign retirement fund that is granted an exemption under this Section shall provide the Registrar with copies of all reports and other documents that are required to be deposited with the entity responsible for its regulation or supervision.

(5) The Registrar may exempt a retirement fund from any or all provisions of this Act, other than the provisions of Sections 3 and 5, if the retirement fund is established by statute.

(6) An exemption granted under this Section may be subject to any conditions the Registrar deems appropriate, taking into account the purposes of the Act.

(7) The Registrar may at any time by notice in writing to the fund withdraw in whole or in part any exemption granted under this Section of this Act.

Penalties

68. (1) A person who contravenes any provision of this Act commits an offence and, if no specific, penalty is provided elsewhere in this* Act, he shall, on conviction, be liable to a fine not ' exceeding E25 000 or a term of imprisonment not exceeding 5 years or both.

Power to make Regulations

69. (1) The Minister may, in consultation with the Registrar and the Retirement Funds Board and any such other person or persons as he may in his discretion consult, by Notice published in the Gazette, make Regulations not in conflict with this Act, which may include the following:

(d) prescribing ways in which formalities required in terms of this Act shall be executed and shall include the process of registration and approval of the valuator and auditor;

(e) prescribing the manner in which information required to be submitted to the Registrar in terms of this Act will be submitted;

(f) prescribing prudent investment guidelines;

(g) prescribing the amount of fees and levies payable and interest thereon;

(h) prescribing the manner in which a retirement fund shall maintain its records and the type of records to be maintained; or 134 (i) empowering the Registrar to issue certain directives to the retirement funds.

(2) The Minister may either of his own accord, or if he is ordered by Parliament to do so, order the Registrar to withdraw or amend any directive issued by the Registrar.

Registrar's Decisions may be made an Order of Court

70. If the Registrar makes any decision not inconsistent with this act, he may if authority is not granted elsewhere in this Act, apply to the court to make his decision an order of the court.

Registrar may Extend Certain Periods

71. (1) Where any person is obliged in terms of any provision of this Act to perform an act within a specified period, the Registrar may at the request of such person extend that period from time to time. (2) The Registrar may extend any such specified period after it has expired. Adherence to the Provisions of the Act shall not Constitute an Offence

11. A person who has, in good faith, supplied information to the Registrar or the Retirement Funds Board in accordance with the provisions of this Act shall not be guilty of an offence according to any law or shall not be subject to any form of sanction according to any code of practice or ethics or shall not be in breach of any agreement.

Application of this Act

73. This Act shall apply to retirement funds, pension funds, provident funds, and any other fund, institution, or organisation that the Registrar, in consideration of the objects of this Act has ordered to report to him.

Funds Established Under the Public Service Pensions Order, 1993

74. (1) Any fund established under the Public Service Pensions Order, 1993, shall be required to comply with the provisions of this Act.

(2) Notwithstanding any provision of this Act, the Registrar may exempt a fund established under the Public Service Pensions Order, 1993, from any of the provisions of this Act.

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THE AUDIT ACT Commentary

The Audit Act is about the establishment of the office of the Auditor General, the appointment of the Auditor General and the Deputy Auditor General as well as the functions and powers of the Auditor General.

It basically lays down the ground rules for the Auditor General in the performance of his duties, for example he has to satisfy himself that reasonable precautions have been taken to safeguard the proper collection of money in terms of this Act, that the laws and instructions relating thereto have been met, that reasonable precautions have been taken in connection with receipt, custody and issue of, and accounting for property, money, stamps, securities, equipment, stores, trust money, trust property or other assets. He must also satisfy himself that receipt, payments and other transactions are made in accordance with applicable laws and instructions and are supported by adequate vouchers. Lastly he has to be satisfied that satisfactory management measures have been taken to ensure that resources are procured economically and utilized efficiently and effectively.

The Auditor General has the power to require in writing any person in the employment of an institution whose accounts are being audited to appear before him and to produce all records, books, vouchers and documents on the possession or under the control of such person as the Auditor General may deem necessary.

According to the Act the Auditor General shall not be liable in his personal capacity to any civil or criminal proceedings in respect of anything done or omitted to be done in good faith in the performance of his duties.

The Audit Act, 2005 (Act No.4 of 2005)

An Act to establish the Office of the Auditor General and to provide for matters incidental thereto.

ENACTED by the King and the Parliament of Swaziland.

ARRANGEMENT OF SECTIONS 1. Short title and commencement 2. Interpretation 3. Establishment of Office of Auditor General 4. Appointment of Auditor General and Deputy Auditor General 5. Disqualification for Appointment for Auditor General and Deputy Auditor General 6. Removal of Auditor General 7. Acting Auditor General 8. Remuneration 9. Functions of Auditor General 10. Powers of Investigation 11. Direct access to Bodies or Companies 12. Immunity from proceeding of Auditor General and Deputy Auditor General 13. Power to conduct performance audits and to appoint persons of specific skills

136 14. Submission of annual report by the Accountant General 15. Reporting 16. Special Report 17. Misappropriation 18. Advisory power 19. Premises and equipment 20. Security and secrecy 21. Other Auditor 22. Estimates 23. Audit of Officer of Auditor General 24. Articles under Auditor General 25. Transitional Provisions 26. Repeal of some sections of the Finance Management and Audit Act, No. 18 of 1967

Short title and Commencement

1. This Act may be cited as the Audit Act, 2005, and shall come into operation on such date as the Minister may, by notice in the Gazette, appoint. Interpretation 2. In this Act, unless the context otherwise requires- "Auditor General" means the Auditor General appointed in terms of Section 4; "Deputy Auditor General" means the Deputy Auditor General appointed in terms of Section 4; " Constitution" means the Constitution of the Kingdom of Swaziland" "Financial year" means the period of twelve months ending on the thirty-first day of March in any year;

"Government company" means a Public Enterprise as defined in the Public Enterprise (Control and Monitoring) Act, 1989; "Minister" means the Minister responsible for Audit; "Public Body" includes a government ministry or department;

"Statutory Body" means any corporation, company, board, commission, authority or body established by or under an Act to provide goods and services to the public and which meets one or more of the following conditions:

(i) all or part of its appropriation for operating purposes are provided under that heading in the budgetary estimates tabled in the Parliament of the Kingdom of Swaziland.

(ii) the Government, the Executive or a Minister appoints at least half of its members or directors and at least half of its operating expenses are borne directly by the Consolidated Fund or other funds administered by a Public Body, or by both at the same time.

Establishment of the Office of Auditor General

3. (1) There is hereby established the Office of Auditor General which shall consist of the Auditor General, the Deputy Auditor General and other officers of the Office. The Auditor General may sue or be sued in his official capacity.

(2) The Office of the Auditor General shall perform such functions as are conferred upon it under this Act or any other law. (3) The Office of the Auditor General shall be a public office. Appointment of Auditor General And Deputy Auditor General

4. (1) Subject to section 5, the Auditor General shall be appointed by the King acting on the advice of the Minister responsible for finance after recommendation by the Civil Service Commission.

(2) In the performance of their functions, the Auditor General and the Deputy Auditor General shall be independent and shall not be subject to the direction or control of any person or authority.

(3) The Auditor General shall be responsible for the administration of the Office subject to any specific or general direction of the King. Disqualification from Appointment of Auditor General And Deputy Auditor General 5. A person may not qualify for appointment as Auditor General or Deputy Auditor General if he - (a) is not a citizen of Swaziland;

(b) has been declared insolvent or declared bankrupt under any law in force in any country or has not been discharged or has made a composition with his creditors and has not paid them in full;

(d) does not hold a degree in accounting or professional qualifications in accounting plus a minimum of ten years experience or a minimum of twenty years continuous working experience in auditing and accounts;

(e) is not a qualified Auditor in terms of the Accountants Act of 1985;

(f) is certified as insane or otherwise adjudged to be of unsound mind under any law for the time being in force in Swaziland.

Removal of Auditor General

6. The provisions of Section 207 of the Constitution shall apply in the case of removal of the Auditor General.

Acting Auditor General

1. (1) If the Auditor General is absent from duty or unable for any other reason to perform the functions of his office, the Deputy Auditor General shall act as Auditor General.

(2) If both the Auditor General and Deputy Auditor General are absent from duty, or are unable for any reason to perform the functions of their office, the King shall, subject to section 5, appoint another person to act as Auditor General.

Remuneration

8. (1) The remuneration and other conditions of service of the Secretary to Cabinet shall apply in respect of the Auditor General.

(2) The Auditor General and the Deputy Auditor General shall not perform remunerative work outside their official functions.

Functions of the Auditor General

9. (1) The Auditor General shall, in addition to the powers and functions conferred upon or entrusted to him in terms of section 207 of the Constitution, have the powers and perform the duties specified in this Act.

(2) Notwithstanding the provisions of any other law but subject to the provisions of the Constitution, the Auditor General shall perform the functions vested in him by this Act in relation to - (a) the accounts which shall be audited and shall include-(i) an abstract account of receipts and payments; (ii) a statement of the assets and liabilities at the close of the financial year; (iii) a detailed statement of revenue and expenditure; (iv) statement of the amount outstanding at the end of the year in respect of the public debt;

(v) a statement of all losses of public moneys, stamps, securities, stores and other property of the Government written off during the year;

(vi) a statement of trading and other special funds;

(vii) a statement of all undischarged guarantees issued in terms of Section 8 of the Finance Management and Audit Act No.18 of 1967; and

(viii) such other statements as the Minister or the House of Assembly may, from time to time require;

(b) the procedure according to which auditing shall be done; and

(3) The Auditor General may at his discretion determine the nature and extent of the audit to be carried out and request the details and statements of account which he considers necessary:

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Provided that he may also determine the format in which and the date on which such details, statements of account and financial statements shall be submitted to him. (4) In the performance of his duties, the Auditor General shall reasonably satisfy himself that -

(a) reasonable precautions have been taken to safeguard the proper collection of money to which an audit in terms of this Act relates, and that the laws and instructions relating thereto have been duly observed;

(b) reasonable precautions have been taken in connection with the receipt, custody and issue of, and accounting for property, money, stamps, securities, equipment, stores, trust money, trust property and other assets;

(c) receipts, payments and other transactions are made in accordance with the applicable laws and instructions and are supported by adequate vouchers; and

(d) satisfactory management measures have been taken to ensure that resources are procured economically and utilised efficiently and effectively. Powers of Investigation 10. (1) When exercising his powers and performing his duties under this Act -

(a) the Auditor General may in writing require any person in the employment of an institution whose accounts are being audited or inspected by him to appear before him at a time and place mentioned in the request and to produce to him all such records, books, vouchers and documents in the possession or under the control of such person as the Auditor General may deem necessary for the exercise of his powers or the performance of his duties;

(b) the Auditor General shall have -

(i) the right, without payment, to investigate and to make extracts from any record, book, document and other information of an institution whose accounts are being audited or inspected by him;

(ii) the right to investigate whether any services obtained, property, money, stamps, securities, equipment, stores, trust money, trust property and other assets of any institution whose accounts are being audited by him have been obtained in an economical manner,, and are being applied efficiently and effectively;

(iii) the right to investigate and to enquire into any matter, including the efficiency and effectiveness of internal control and management measures, relating to expenditure by and the revenue of an institution whose accounts are being audited or inspected by him and the parties who have such relationship shall accordingly be notified.

(2) The Auditor General may administer an oath or accept an affirmation from and interrogate under oath or upon affirmation any person whom he thinks fit to interrogate, in connection with the receipt, custody, payment or issue of property, money, stamps, securities, equipment, stores, trust money, trust property and other assets to which the provision of this Act and the Constitution apply, and in connection with any other matter in so far as it may be necessary for the due performance and exercise of the powers and duties conferred or imposed upon the Auditor General by this Act and the Auditor General shall not be required to reveal the identity of the person referred to in this paragraph.

(3) Subsections (1) to (2) shall also apply equally to the accounts of contractors or suppliers who have or have had contractual relationship with Government and the parties who have such relationship shall accordingly be notified.

(4) The Auditor General may require the Government department or Ministry, or a statutory body to make available free of charge, while the audit is being carried out, suitable office accommodation, other facilities and logistical support reasonably required for the proper carrying out of the audit.

Direct Access to Bodies or Companies

11. (1) In the exercise of the powers conferred by Section 10, the Auditor General may request a Statutory Body, Government Company or a company in which Government has a major shareholding, to obtain and furnish to him such information and explanations from its present or former directors, officers, employees, agents and auditors or those of any of its subsidiaries as are, in his opinion, necessary to enable him to fulfil his responsibilities as the Auditor of the accounts of the Kingdom of Swaziland.

(2) If, in the opinion of the Auditor General, a Statutory Body, Government Company, or a

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company in which government has a major shareholding, in response to a request made under sub-section (1) fails to provide any or sufficient information or explanations, he may so advise the Government, who shall thereupon direct the officers of the Body or Company to furnish the Auditor General with such information and explanations and to give him access to those records, documents, books, accounts and vouchers of the Body or Company or any of its subsidiaries access to which is, in the opinion of the Auditor General, necessary for him to fulfil his responsibilities as the Auditor of the Accounts of the Kingdom of Swaziland. Immunity front proceedings of Auditor General and Deputy Auditor General

12. Subject to the powers and privileges of Parliament, the Auditor General, Deputy Auditor General or any person acting under the authority of the Auditor General, shall not be liable in his personal capacity in any civil or criminal proceedings in respect of anything done or omitted to be done in good faith -

(a) in the performance of any duty or the exercise of any power imposed or conferred upon him in terms of this Act or any other Jaw;

(b) in giving evidence or an explanation or producing any document before a committee of Parliament in connection with a report of the Auditor General.

Power to conduct performance audits and to appoint persons of specific skill

13. (1) The Auditor General shall have power to conduct performance audits.

(2) The Auditor General may appoint a person or persons of specific skill to assist him with a specific investigation.

(3) The Auditor General may, whenever he considers it to be in the public interest, or upon receipt of a complaint, investigate, audit and report on the accounts and financial statements of any statutory body or any other institution in control of public funds.

Submission of annual report by the Accountant General

14. (1) Subject to sub-section (2), the Accountant General shall within six months after the end of each financial year, sign and submit to the Auditor General accounts showing fully the financial position of the Consolidated Fund, and other public funds on the last day of such financial year.

(2) The time allowed for the submission of the accounts by the Accountant General may be extended by the Minister for a further period not exceeding two months. (3) The accounts shall include- (a) an abstract account of receipts and payments; (b) a statement of the assets and liabilities at the close of the financial year; (c) a detailed statement of revenue and expenditure; (d) a statement of the amount outstanding at the end of the year in respect of the public debt; (e) a statement of all losses of public moneys, stamps, securities, stores or other property of the Government written off during the year;

(f) a statement of trading and special funds;

(g) a statement of all guarantees issued in terms of Section 8 of the Finance Management and Audit Act, 1967 which have not yet been discharged; and

(h) such other statements as the Minister or the House of Assembly may, from time to time require.

Reporting

15. (1) The Auditor General shall report annually to Parliament -

(a) on the work of his office; and

(b) on whether, in carrying out the work of his office, he received all the information, reports and explanations he required.

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(2) Each report of the Auditor General under sub-section (1) shall be certified by him and call attention to anything that he considers to be of significance and of a nature that should be brought to the attention of the House of Assembly including any cases in which he has observed that -

(a) accounts have not been faithfully and properly maintained or public money has not been fully accounted for or paid, where so required by law, into the Consolidated Fund;

(b) essential records have not been maintained or the rules and procedures applied have been insufficient to safeguard and control public property, to secure an effective check on the assessment, collection and proper allocation of revenue and to ensure that expenditures have been made only as authorized;

(c) money has been expended without due regard to economy (the acquisition, at the lowest cost and at the appropriate time, of human and material resources in appropriate quantity and quality) or efficiency (the conversion, in the best ratio, of resources into goods and services); or

(d) satisfactory procedures have not been established to measure and report on the effectiveness of programmes (the achievement, to the best degree, of the objectives or other intended effects of programmes, an organization or any activity), where such procedures could appropriately and reasonably be implemented.

(3) The Auditor General shall submit a certified annual report to Parliament through the Minister within a period of nine months after the close of each financial year and if Parliament is not sitting, on the first day next that Parliament is sitting.

(4) Parliament, through the Speaker, may, by direction in writing addressed to the Auditor General, extend the period within which such Report shall be transmitted and any direction so given shall be laid before the Parliament forthwith after transmittal to the Auditor General or, if Parliament is not sitting, on the first day next that Parliament is sitting.

Special Report

16. (1) The Auditor General may, at anytime, submit a Special Report to Parliament through the Minister on any matter of importance or urgency that in his opinion, should not be deferred until the presentation of his Annual Report.

(2) Each Special Report of the Auditor General to the House of Assembly shall be submitted to the Speaker of the House of Assembly and the Speaker shall lay such Report before the House of Assembly forthwith after receipt thereof by him or, if that House is not sitting, on first day next that the House of Assembly is sitting.

Misappropriation

17. Whenever it appears to 'the Auditor General that any public money has been misappropriated by any person, he shall forthwith report the circumstances of the case to the Attorney General and the Controlling Officer for the Ministry of Finance for appropriate action.

Advisory Powers

IS.The Auditor General may be asked to look at a specific issue or may do it at his own initiative and advise appropriate officers and employees in the public service of the Kingdom of Swaziland on matters discovered in his examinations and, in particular, may draw any such matter to the attention of Controlling Officers and employees engaged in the conduct of the business of the Ministries concerned.

Premises and Equipment

19. In order to carry out his duties more effectively, the Auditor General may station in the premises occupied by any Public Body, Statutory Body, Government Company, or other Organization established by law for public purposes, any person employed in or by his Office and the Body, Company or Organization shall provide the necessary office accommodation for any person so stationed free of charge.

Security and Secrecy

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20. The Auditor General shall require every person employed in his office who is to carry out an audit, pursuant to this Act, of a Public Body, Statutory Body, Public Company or other Organization established by law for public purposes, to comply with any security requirements applicable to, or any oath of secrecy required to be taken by persons employed in that Body, Company or Organisation.

Other Auditor

21. (1) The Auditor General shall not be required to audit the books of a Statutory Body or Government Company for which another Auditor is appointed in accordance with the provisions of the Act that establishes it and may, in order to fulfil his responsibilities as the Auditor of the accounts of the Kingdom of Swaziland, rely on the Report of the duly appointed Auditor of the Statutory Body or Government Company.

(2) The Auditor of the books and accounts of a Statutory Body or Government Company, other than the Auditor General, shall provide to the Auditor General with dispatch, a copy of-

(a) the Annual Financial Statements of the Body or Company;

(b) his Report on these statements;

(c) any other Report he makes to the Board of Directors, the executive or the management of the Body or Company, as the case may be, on his findings and recommendations.

(3) The Auditor referred to in sub-sections (1) and (2) shall make available to the Auditor General, on request, the working papers and other reports and documents in respect of his audit, as well as any other information and explanations which the Auditor General may require in respect of that audit and its results.

(4) If the Auditor General is of the opinion that the information, explanations, documents and reports provided by the Auditor mentioned in sub-sections (1) and (2) are insufficient, or that additional audit work should be carried out, he may conduct or cause to be conducted such additional audit or investigation as he considers necessary of the books, accounts and operations of the Body or Company.

(5) Notwithstanding subsections (1) and (4), the Auditor General may at any time audit or cause to be audited the books of a statutory body or Government Company for which another auditor is appointed in accordance with the provisions of the Act that establishes it and the cost of such additional audit shall be borne by that body or company.

Estimates

22. (1) The Auditor General shall annually prepare an estimate of the sums that will be required to be provided by Parliament for the payment of the salaries, allowances and expenses of his office during the next ensuing fiscal year.

(2) The Auditor General may make a Special Report to the House of Assembly through the Minister in the event that amounts provided in the estimates submitted to Parliament are, in his opinion, inadequate to enable him to fulfil the responsibilities of his Office.

(3) The provisions of the Finance Management and Audit Act No. 18 of 1967 or Regulations made thereunder with respect to the division of appropriations into allotments, suspension of the right to commit appropriations and suspension of payment of appropriations, shall not apply to appropriations granted to the Office of the Auditor General.

(4) The Auditor General may submit supplementary estimates to the House of Assembly through the Minister if, during the fiscal year, he foresees expenditures in excess of the appropriations granted by Parliament.

Audit of Office of Auditor General

23. (1) A qualified Auditor nominated by the Minister responsible for finance, after due tendering process, shall examine the receipts and disbursements of the Office of the Auditor General and shall submit his Report through the Minister, not later than nine months after the close of each financial year, to the Speaker of the House of Assembly within three days of receiving it, or if that House is not sitting, within three days of the opening of the next session or resumption.

(2) The Auditor nominated under sub-section (1) shall not be a public servant or a person employed by contract or otherwise by a Public Body, Statutory Body or Government Company.

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Articles under the Auditor General

24. A person who has served articles under the Auditor General for a period of two years shall be deemed to have complied with the provisions of section 9 (3) of the Accountants Act, 1985.

Transitional Provisions

25. (1) A person who immediately before the commencement of this Act was the Auditor General or the Deputy Auditor General for the Kingdom of Swaziland shall continue in office subject to the provisions of this Act.

(2) Notwithstanding subsection (1), the conditions of service applicable to the person who immediately prior to the date of commencement of this Act occupied the post of Auditor General or Deputy Auditor General, shall not be altered to his detriment, and no such condition of service shall at any time be construed or applied in a manner which is less favourable to the person concerned than the manner in which it was construed or applied immediately prior to the said date.

(3) The period of service of a person mentioned in subsection (1) shall, for the purposes of leave and pension, be reckoned as part of, and continuous with, his employment in the public service or as Auditor General, as the case may be.

Repeal of some Sections of the Finance Management and Audit Act No. 18 of 1967 26. Sections 14,15,16,17,18,19 and 20 of the Finance Management and Audit Act No.18 of 1967, are hereby repealed.

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FAIR TRADING ACT Commentary

The Fair Trading Act provides for a standard code of conduct and prohibits certain practices and conduct which would result in unfair trade practices. For example, it prohibits misleading and deceptive conduct, false representation and unfair practices. These include but are not limited to the following:

Misleading conduct and false representation in relation to goods and services, and in relation to employment. In relation to trade marks, the Act states that a person shall not forge any trade mark. Also, a person may not in trade advertise for supply at a specified price, goods or services which that person does not intend to offer or supply. In addition the Act prohibits the use of physical force or harassment or coercion in connection with the supply or possible supply of goods or services.

The Act goes on to state the penalties incurred by any person who contravenes the Act and the sentences attaching thereto. According to the Act however, any person who has been charged with contravention of the Act may in his defence rely on the fact that the contravention was due to a reasonable mistake or that he relied on information supplied by another person.-

The Fair Trading Act, 2001

Date of commencement: 5th November, 2001.

An Act to provide for a standard code of trading conduct and to prohibit certain conduct and practices in trade and matters incidental thereto.

Arrangement of Sections

PART I

PRELIMINARY 1. Short title and commencement. 2. Interpretation. 3. Application outside Swaziland.

PART II

MISLEADING AND DECEPTIVE CONDUCT, FALSE REPRESENTATIONS AND UNFAIR PRACTICES 4. Misleading or deceptive conduct generally. 5. Misleading conduct in relation to goods or services. 6. Misleading conduct in relation to employment. 7. False representations in respect of goods or services. 8. False representations in respect of land. 9. Limited application of sections 4 to 8 to news media. 10. Certain conduct in relation to trade marks prohibited. 11. Offering gifts and prizes. 12. Trading stamp schemes prohibited. 13. Bait advertising. 14. Referral selling.

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15. Demanding or accepting payment without intending to supply as ordered. 16. Misleading representations about certain business activities. 17. Harassment and coercion. 18. Pyramid selling schemes. 19. Import of goods bearing false trade description or false trade mark prohibited.

PART III

ENFORCEMENT AND REMEDIES

20. Jurisdiction of courts. 21. Offences and penalties for contravention of Part II. 22. Injunctions for contravention of Part II. 23. Order to disclose information or publish advertisement. 24. Other orders. 25. Defences. 26. Conduct by servants or agents.

PART IV

GENERAL

27. Power to search. 28. Repeal of laws. 29. Power to make regulations. SCHEDULE

PART I

PRELIMINARY

Short title

1. This Act may be cited as the Fair Trading Act, 2001, and shall come into force on 5th November, 2001.

Interpretation

2. (1) In this Act, unless the context otherwise requires —

“acquire”, — (a) in relation to goods, includes obtain by way of gift, purchase, or exchange, and also includes take on lease, hire, or hire purchase of goods; (b) in relation to services, includes acceptance of services; and (c) in relation to interest in land, includes obtain by way of gift, purchase, exchange, lease or License of land,

and “acquisition” has a corresponding meaning;

“advertisement” means any form of communication made to the public or a certain section of the public for the purpose of promoting the supply of goods or services or the sale or granting of an interest in land, and “advertise” has a corresponding meaning;

“business” means any undertaking — (a) that is carried on whether or not for gain or reward; and

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(b) in the course of which — (i) goods or services are acquired or supplied; or (ii) any interest in land is acquired or disposed of, whether free of charge or not;

“Court” means the High Court of Swaziland;

“credit instrument” means any verbal or written agreement, acknowledging an obligation to pay a sum or sums of money on demand or at any future time or times;

“document” means a document in any form whether or not signed or initialled or otherwise authenticated by its maker, and includes — (a) any writing on any material; (b) any information recorded or stored by means of any tape recorder, computer, or other device, and any material subsequently derived from information so recorded or stored; (c) any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means whatsoever; (d) any book, map, plan, graph or drawing; or (e) any photograph, film, negative, tape, or other device in one or more visual images which are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced;

“goods” has its ordinary meaning and shall also include — (a) animals, including fish; (b) minerals, trees, and crops, whether on, under, or attached to land or not; and (c) electricity;

“local authority” has the same meaning as defined in the Urban Government Act, 1969;

“Minister” means the Minister responsible for Commerce or Enterprise;

“Ministry” means the Ministry responsible for Commerce or Enterprise;

“person” includes a local authority, and any association of persons whether incorporated or not;

“place” includes any premises, building, aircraft, ship, carriage, vehicle, box or receptacle;

“price” includes valuable consideration in any form, whether direct or indirect, and includes any consideration that in effect relates to the acquisition or supply of goods or services or the acquisition or disposition of any interest in land, although ostensibly relating to any other matter or thing;

“services” includes any rights, including rights in real or personal property, benefits or facilities that are provided or are to be provided, granted, or conferred, or conferred under — (a) a contract for, or in relation to — (i) the performance of work, including work of a professional nature, whether with or without the supply of goods; (ii) the provision of, or the use or enjoyment of facilities for accommodation, parking, amusement, or the care of persons, animals or things, entertainment, instruction, recreation; or (iii) the conferring of rights or benefits for which remuneration is payable in the form of a royalty, tribute, levy, or similar exaction; (b) a contract of insurance, including life assurance, and life reassurance; (c) a contract between a bank and a customer of the bank;

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(d) any contract for, or in relation to, the lending of money or granting of credit, or the making of arrangements for the lending of money or granting of credit, or the buying or discounting of a credit instrument, or the acceptance of deposits but does not include rights or benefits in the form of the supply of goods or the performance of work under a contract of service;

“supply” — (a) in relation to goods, includes supply or re-supply of goods by way of gift, sale, exchange, lease, hire, or hire purchase; and (b) in relation to services, includes to provide a grant or confer of services,

and “supply” as a noun, “supplied”, and “supplier” have corresponding meanings; and

“trade” means any trade, business, industry, profession, occupation, activity of commerce or undertaking relating to the supply or acquisition of goods or services or to the disposition or acquisition of any interest in land. (2) In this Act, a reference to engaging in conduct shall be read as a reference to doing or refusing to do an act, and includes — (a) omitting to do an act; or (b) making it known that an act will or will not be done.

Application outside Swaziland

3. (1) This Act extends to any person resident or carrying on business in Swaziland, who is engaged in conduct outside Swaziland, to the extent that such conduct relates to the supply of goods or services, or the granting of interests in land, within Swaziland. (2) The provisions of this Act shall be in addition to the Regulation of Advertisement Act, No. 62 of 1953, and where the two Acts are inconsistent, the provisions of this Act shall take precedence.

PART II

MISLEADING AND DECEPTIVE CONDUCT, FALSE REPRESENTATIONS AND UNFAIR PRACTICES

Misleading or deceptive conduct generally

4. A person shall not, in trade, engage in any conduct that is misleading or deceptive or is likely to mislead or deceive.

Misleading conduct in relation to goods or services

5. A person shall not, in trade or services, engage in any conduct that is liable to mislead the public as to the nature, manufacturing process, characteristics, suitability for a purpose, or quantity of goods and services.

Misleading conduct in relation to employment

6. A person shall not in relation to employment that is, or is to be, or may be offered by that person or any other person, engage in any conduct that is misleading or deceptive or is likely to mislead or deceive as to the availability, nature, terms or conditions or any other matter relating to that employment.

False representations in respect of goods or services

7. A person shall not in trade in connection with the supply or possible supply of goods or services, or with the promotion by any means of the supply or use of goods or services — (a) falsely represent that goods are of a particular kind, standard, quality, grade, quantity, composition, style, or model, or have had a particular history or particular previous use; (b) falsely represent that services are of a particular kind, standard, quality, or quantity, or that they are supplied by any particular person or by any person of a particular trade, qualification, or skill;

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(c) falsely represent that a particular person has agreed to acquire goods or services; (d) falsely represent that goods are new, or that they are reconditioned, or that they were manufactured, produced, processed, or reconditioned at a particular time; (e) falsely represent that goods or services have any sponsorship, approval, endorsement, performance characteristics, accessories, uses, or benefits; (f) falsely represent that a person has any sponsorship approval, endorsement, or affiliation; (g) make a false or misleading representation with respect to the price of any goods or services; (h) make a false or misleading representation concerning the existence, exclusion, or effect of any condition, warranty, guarantee, right, or remedy; or (i) make a false or misleading representation concerning the place of origin of goods.

False representations in respect of land

8. (1) A person shall not in trade in connection with the sale or grant or possible sale or grant of an interest in land or with the promotion by any means of the sale or grant of an interest in land — (a) falsely represent that a person has any sponsorship, approval, endorsement, or affiliation; or (b) make a false or misleading representation concerning the nature of interest in the land, the price payable for the land, the location of the land, the characteristics of the land, the use to which the land is capable of being put or may lawfully be put, or the existence or availability of facilities association with the land. (2) A person shall not use physical force, harassment, or coercion in connection with the sale or grant or possible sale or grant of an interest in land, or the payment for an interest in land. (3) In this section “interest”, in relation to land, means a legal or equitable estate or interest in the land, and includes — (a) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, in a company that owns the land or building; or (b) a right, power or privilege over, or in connection with the land.

Limited application of sections 4 to 8 to news media

9. Sections 4 to 8 shall not apply to the publication of any information or matter in a newspaper or broadcasting service, not being — (a) an advertisement; or (b) information or matter relating to the supply or promotion of goods or services or the sale or grant or promotion of an interest in land by — (i) the newspaper publisher or broadcasting service or a body corporate connected thereto; or (ii) any person who is a party to any contract, arrangement, or understanding with that publisher or service relating to the content, nature or tenor of the information or matter.

Certain conduct in relation to trade marks prohibited

10. (1) A person shall not, in trade, — (a) forge any trade mark; or (b) falsely apply to any goods any trade mark or mark so nearly resembling a trade mark as to be likely to mislead or deceive. (2) A person shall not sell or expose or have in the person’s possession for sale or for the purpose of trade or manufacture, any goods or things to which any forged trade mark or false trade description is applied or to which any trade mark, or mark so nearly resembling a trade mark as to be calculated to deceive, is falsely applied. (3) For the purposes of this section a person shall be deemed to forge a trade mark if that person —

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(a) without the consent of the proprietor of the trade mark, makes that trade mark or a mark so nearly resembling that trade mark as to be likely to mislead or deceive; or (b) falsifies any trade mark, whether by alteration, effacement or otherwise. (4) For the purposes of this section, “trade mark” means any trade mark as defined in the Trade Marks Act, 1981, or any successor thereto, and includes any mark which is used upon or in connection with goods for the purpose of indicating that they are the goods of the proprietor of the mark by virtue of manufacture, selection, certification, dealing with, or offering for supply. (5) It shall be a defence to any charge under subsection (2) if the defendant proves that — (a) she or he, having taken all reasonable precautions against contravening the provisions of the subsection, had at the time of committing the alleged offence no reason to suspect the genuineness of the trade mark or trade description; and (b) she or he, on demand made by or on behalf of the complainant, gave all the information known to her or him regarding the persons from whom she or he obtained such goods or things.

Offering gifts and prizes

11. A person shall not — (a) in connection with the supply or possible supply of goods or services or with the promotion by any means of the supply or use of goods or services; or (b) in connection with the sale or grant or the possible sale or grant of an interest in land or with the promotion by any means of the sale or grant of an interest in land, offer gifts, prizes, or other free items with the intention of not providing them as offered.

Trading stamp schemes prohibited

12. (1) A person shall not in trade supply or arrange for the supply of any trading stamp, either directly or indirectly, to any manufacturer, packer, importer, distributor, or seller of goods or supplier of services. (2) In this section “trading stamp” means any coupon, stamp, token, cover, package, document or thing — (a) that is supplied or intended to be supplied in connection with the sale of goods or services or for the purpose of promoting the sale of goods or services; (b) that is redeemable by a person who is not the manufacture, packer, importer, distributor, or seller of goods or supplier of services in connection with which it is supplied; and (c) that entitled the holder on redemption to money, goods or services or qualifies the holder on redemption to receive money, goods or services.

Bait advertising

13. (1) A person shall not in trade advertise for supply at a specified price goods or services which that person — (a) does not intend to offer for supply; or (b) does not have reasonable grounds for believing can be supplied by that person at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement. (2) Any person who advertises goods or services for supply at a specified price shall offer such goods or services for supply at that price for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the person carries on business and the nature of the advertisement.

Referral selling

14. (1) A person shall not, subject to subsection (2), induce another person to acquire goods or services by representing that the person acquiring the goods or services will, after the contract for the acquisition of the goods or services is made, receive a rebate, Commission, or other benefit in return for giving that person the names of prospective customers or 149 otherwise assisting that person to supply goods or services to other users or consumers, if receipt of the rebate, commission, or other benefit is contingent on an event occurring after such contract is made. (2) Subsection (1) shall not apply to the acquisition of goods for re-supply.

Demanding or accepting payment without intending to supply as ordered

15. (1) A person shall not demand or accept payment or other consideration for goods or services, if at the time of the demand or acceptance, that person — (a) does not intend to supply the goods or services; (b) intends to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is demanded or accepted; or (c) does not have reasonable grounds to believe that that person will be able to supply the goods or services within any specified period, or if no period is specified, within a reasonable time.

Misleading representations about certain business activities

16. (1) A person shall not make a representation that is false or misleading in a material aspect by particulars concerning the profitability or risk or any other material aspect of any business activity that that person represents as one that may be, or may be to a substantial extent, carried on at or from a person’s place of residence. (2) A person who invites, whether by advertisement or otherwise, persons to engage or participate or to offer or apply to engage or participate, in a business activity requiring — (a) the performance by the persons concerned of work; or (b) the investment of money by the persons concerned and the performance by them of work associated with the investment, shall not make, with respect to the profitability or risk or any other material aspect of the business activity, a representation that is false or misleading in a material particular.

Harassment and coercion

17. A person shall not use physical force or harassment or coercion in connection with the supply or possible supply of goods or services or the payment for goods or services.

Pyramid selling schemes

18. (1) A person shall not promote or operate a pyramid selling scheme. (2) For the purposes of this section, the term “pyramid selling scheme” includes — (a) a scheme — (i) that provides for the supply of goods or services or both for reward; and (ii) that, to many participants in the scheme, constitutes primarily an opportunity to sell an investment opportunity rather than an opportunity to supply goods or service; and (iii) that is or is likely to be unfair to many of the participants in the scheme in that — (aa) the financial rewards of many of those participants are dependent on the recruitment of additional participants, whether or not at successively lower levels; and (bb) the number of additional participants in the scheme that must be recruited to produce reasonable financial rewards to participants in the scheme is not attainable or is not likely to be attainable by many of the participants to the scheme; or (b) a scheme of the type commonly known as a chain letter scheme, whether or not it provides for the supply of goods or services or both that is likely to be unfair to many of the participants in the scheme, in that — (i) the financial rewards of many of those participants are dependent on the recruitment of additional participants; and

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(ii) the number of additional participants in the scheme that must be recruited to produce reasonable financial rewards to participants in the scheme is not attainable or is not likely to be attainable by many of the participants in the scheme.

Import of goods bearing false trade description or false trade mark prohibited

19. (1) No goods to which — (a) a false trade description is applied; or (b) there is falsely applied any trade mark, or mark so nearly resembling a trade mark as to be likely to mislead or deceive, shall be imported into Swaziland and shall be deemed to be included among goods prohibited from import under section 113 of the Customs, Fiscal, Excise and Sales Duties Act, 1971, and the provisions of that Act shall apply to such goods in so far as it is applicable. (2) In this section “false trade description” means any representation which, if made in connection with the supply or possible supply of goods or with the promotion by any means of the supply or use of goods, would constitute a contravention of paragraphs (a), (d) or (i) of section 7. (3) For the purpose of subsection (1) a false trade description or trade mark or mark shall be deemed to be applied to goods if — (a) it is woven in, impressed on, worked into, or annexed or affixed to the goods in any manner; or (b) it is applied to a covering, label, reel, or thing in or with which the goods are supplied.

PART III

ENFORCEMENT AND REMEDIES

Jurisdiction of Courts

20. (1) Magistrates’ Courts shall hear and determine — (a) proceedings for offences under section 21; and (b) applications for orders under section 24 where the amount or value claimed or awarded does not exceed E50,000. (2) The Court shall hear and determine — (a) appeals from proceedings in a Magistrate’s Court for offences under section 21; (b) applications for injunctions under section 22; and (c) application for orders under sections 23 and 24.

Offences and Penalties for contravention of Part II

21. (1) A person who contravenes any of the provisions of Part II commits an offence and is liable on conviction to a fine not exceeding E100,000 or to imprisonment for a period not exceeding 5 years or to both such fine and such imprisonment. (2) Proceedings under this section may be commenced at any time within 3 years after the matter giving rise to the contravention arose or came to light.

Injunctions for contravention of Part II

22. (1) The Court may, on the application of any person, grant an injunction, including an interim injunction, restraining a person from engaging in any conduct which constitutes — (a) a contravention or an attempt to contravene any provision of Part II; (b) aiding, abetting, or assisting any other person to contravene such a provision;

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(c) inducing, or attempting to induce, any other person, whether by threats, promises or otherwise, to contravene such a provision; (d) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of such a provision; or (e) conspiring with any other person to contravene such a provision. (2) If it appears to the Court — (i) that any person has engaged or is likely to engage in any conduct referred to in subsection (1); or (ii) that it is otherwise desirable to issue an injunction, whether or not it appears to the Court that the person intends to continue or repeat the conduct and whether or not there is damage or imminent danger of damage to any other person, the Court may grant an injunction or interim injunction as requested. (3) The Court may at any time rescind or vary an injunction or interim injunction granted under this section.

Order to disclose information or publish advertisement

23. The Court may, on the application of the Minister, if the Court is satisfied that a person has engaged in conduct constituting a contravention of any of the provisions of Part II, make — (a) an order requiring that person, or any other person involved in the contravention, to disclose, at that person’s own expense, to the public, or to a particular person or class of persons, in such manner as is specified in the order, any information that is in the possession of the person to whom the order is directed or to which that person has access; or (b) an order requiring that person, or any other person involved in the contravention, to publish, at that person’s own expense, in such manner and at such times as are specified in the order, corrective statements the terms of which are specified in, or are to be determined in accordance with, the order.

Other orders

24. (1) If, in any proceedings under this Act, or on the application of any person, the Court finds that a person, whether that person is or is not a party to the proceedings, has suffered, or is likely to suffer, loss or damage by any conduct of any other person described in section 22, the Court may make an order — (a) declaring the whole or any part of a contract made between the person who suffered or is likely to suffer the loss or damage and the person who engaged in the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void ab initio or from any other time; (b) varying such a contract or arrangement, with effect from any date; (c) directing the person who engaged in the conduct to refund money or return property to the person who suffered the loss or damage; (d) directing the person who engaged in the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage; (e) directing the person who engaged in the conduct to repair, or provide parts for, goods that had been supplied by that person to the person who suffered, or is likely to suffer, the loss or damage; or (f) directing the person who engaged in the conduct to supply specified services to the person who suffered, or is likely to suffer, the loss or damage. (2) An application under subsection (1) may be made at any time within 3 years from the time when the matter giving rise to the application occurred or came to light. (3) Subject to section 20(1)(b), a Magistrate’s Court may hear and determine applications for orders under subsection (1).

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Defences

25. (1) Subject to this section, it is a defence to a prosecution for contravening section 21 if the defendant proves — (a) that the contravention was due to a reasonable mistake; (b) that the contravention was due to reasonable reliance on information supplied by another person; or (c) that — (i) the contravention was due to the act or default of another person, or to an oversight or to some other cause beyond the defendant’s control; and (ii) the defendant took reasonable precautions and exercised due diligence to avoid the contravention. (2) For the purposes of subsection (1)(b) and (c) the term “another person” does not include — (a) a servant or agent of the defendant; or (b) where the defendant is a body corporate, a director, servant or agent of the defendant. (3) A defendant is not, without the leave of the Court, and subject to such order as to costs as the Court may deem fit, entitled to rely on the defence provided for by subsection (1)(b) or (1)(c)(i) unless the defendant has, not later than 7 days before the date on which the hearing of the proceedings commences, served on the person contemplated in section 25(1)(b) a notice in writing identifying that person. (4) It is a defence to a prosecution for an offence for the contravention of section 21, or to any other proceedings under this Part, in relation to a contravention of a provision of this Act committed by the publication of an advertisement, if the defendant proves — (a) that the defendant’s business is publishing or arranging for the publication of advertisements; and (b) that the defendant received the advertisement, or the information contained in the advertisement, as the case may be, in the ordinary course of that business and did not know and had no reason to suspect that the publication of the advertisement or the publication of the advertisement containing that information, as the case may be, would constitute a contravention of the provision.

Conduct by servants or agents

26. (1) Where, in proceedings under this Act in respect of a contravention by a person of any provisions of this Act, it is necessary to establish the state of mind of that person, it is sufficient to show that a servant or agent of the person, including a director in the case of a body corporate, acting within the scope of that person’s actual or apparent authority, had that state of mind. (2) Any conduct engaged in on behalf of a person — (a) by a servant or agent of the person, including a director in the case of a body corporate, acting within the scope of that person’s actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement, whether express or implied, of a servant or agent of the person, including a director in the case of a body corporate, given within the scope of the actual or apparent authority of the servant or agent, shall be deemed, for the purposes of this Act, to have been engaged by the first-mentioned person.

PART IV

GENERAL

Power to search

27. (1) The Minister may authorise an officer of the Ministry to search any place named in the warrant for the purpose of ascertaining whether a person mentioned in the warrant has engaged in or is engaging in conduct that constitutes or may constitute a contravention of this Act. (2) A Magistrate who is satisfied, on application made on oath by an officer of the Ministry authorised under subsection (1), that there are reasonable grounds to believe that it is necessary for the purpose of ascertaining whether or not

153 a person mentioned in the warrant has engaged in or is engaging in any conduct that constitutes or may constitute a contravention of this Act, may authorise a warrant to search the place mentioned in the warrant. (3) A warrant issued under subsections (1) or (2) authorises the officer named in it — (a) to enter and search the place specified in the warrant on one occasion only within 30 days of the date of issue at a reasonable time; (b) to use such assistance (including that of the Police) as is reasonable, in the circumstances; (c) the use such force for gaining entry of any property and for breaking open any article or thing as is reasonable in the circumstances; (d) where necessary, to take copies of documents, or extracts from documents, that the person executing the warrant believes on reasonable grounds may be relevant in the case; and (e) where necessary, to require a person to reproduce, or assist any person executing the warrant to reproduce, in usable form, information recorded or stored in a document. (4) Where, as a result of the information obtained form the search, the officer has reason to believe that there has been a contravention of this Act or any other law, the officer may report to, and may request the Director of Public Prosecutions to institute criminal proceedings against, any person involved in the contravention, and the Director of Public Prosecutions shall judiciously act upon the matter. (5) Any person who resists, obstructs, or unreasonably delays any officer authorised to search the place mentioned in the warrant, is guilty of an offence and liable on conviction to a fine not exceeding E10,000 or to imprisonment for a period not exceeding 5 years or to both the fine and imprisonment. (6) Nothing contained in this section shall be construed as derogating from the powers to enter, search and seize conferred on police officers by the Criminal Procedure and Evidence Act or any other laws.

Repeal of laws

28. (1) Subject to the provisions of subsection (2), the laws specified in the Schedule are hereby repealed. (2) Any regulation, rule, notice, approval, authority, return, certificate, document, direction or appointment made, issued, given or granted, and any other act done under any provision of any law repealed by this Act shall, subject to the provisions of subsections (3), be deemed to have been made, issued, given, granted or done under the corresponding provisions of this Act. (3) Notwithstanding the repeal of any law under subsection (1), criminal proceedings which have under such law at the date of commencement of this Act been commenced in any court or magistrate’s court, and in which evidence has at such date been led in respect of the relevant charge, shall, if such proceedings have at that date not been concluded, be continued and concluded under such law as if it had not been repealed.

Power to make Regulations

29. (1) The Minister may, by notice in the Gazette — (a) amend any schedule to this Act; (b) make regulations — (i) prescribing any forms to be used in this Act; (ii) amending the fines provided for in this Act; (iii) prescribing any thing under this Act which is to be prescribed and generally for the better carrying out of the objects and purposes of this Act or to give force or effect to its provisions or for its better administration.

SCHEDULE

Merchandise Marks Act, 1937 (No. 24 of 1937)

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THE SALES TAX ACT Commentary

The preamble of this Act is stated as an Act provided for the levying of sales tax, the repeal of the hotel and rates taxation order, 1973 and other matters incidental thereto. The Sales Tax Act consists of some 33 sections with four schedules relating thereto. On top of that the Act is construed to mean any regulation made under section 28 of the Act.

The definitions clause of the sales and customs Act, firstly does not make mention of the commissioner and who the commissioner shall be and yet it does make a definition of who the secretary for customs shall be. It is in fact not clear if the office of secretary of customs actually exists as one understanding that the one referred to is the office of the commissioner of customs.

It is based on this that an assessment for sales is made. However when one looks at the schedule of the Act, there is a number of other classifications that are added therein including for instance audit services and legal services and estate agent services which strictly speaking cannot be referred to as corporeal simply because they are incorporeal.

One would in fact say that the mere definition for goods is in fact therefore not correct at all and should rather have been stated as goods as in those mentioned in the schedules to this Act that would have covered everything because there are so many other things that are mentioned in this Act as goods. It would seem that the office of the commissioner of taxes in terms of Section 3 of the Act is charged with the administration of this Act and it is the commissioner who will confer duties and powers upon the secretary of customs to perform matters that would be performed by the commissioner personally or by an officer under the control of the supervision of the commissioner. It would therefore seem that in many instances the secretary to customs is in fact the officer of the commissioner of taxes. The powers conferred upon the officers of the commissioner of customs are wide ranging and will include search and seizure of any and all items that might give evidence with regards to assessing the liability of any person for any tax payable under the Act.

It is however important to note that any officer who is referred to and who is carrying out such investigations and/or search and seizures must on demand produce the written report to him or her by the commissioner. It therefore goes without saying that if such officers fails to produce such written documentation the person who is being searched has a right to refuse search and seizure.

The Act also states that the owner of the articles once they have been seized has the authority to make copies and extracts during normal office hours under the supervision of the commissioner. Whilst the Act guarantees that documents and other information in respect of any persons, firm or business shall be of confidential nature if however shall not prevent the commissioner from using the information for administering any other law in which he is the custodian.

Section 6 then defines what the levying of sales tax shall be in respect and refers to the categories of goods which will pay tax in Swaziland. It is worth noting that Section 7 states that the minister shall make the final decision as to any disputes regarding what transaction is liable to tax. In practice however it is clear that the number of appeals that have been made have been made to the commissioner who has made a ruling in these matters. Whether rightly or wrongly the effect of the matter is that it is the commissioner who make the decision and yet it is the commissioner also who hears an application.

Exemptions as stated by Section 8 of the Act are specified in the Section 9 of the Act, gives the minister power to amend the rate tax schedule. It would seem that in the making of any orders the minister can /may publish them in the gazette and thereafter submit them for approval by resolution of parliament within 15 days of the order being made. It seems that if parliament does not approve the order, then that order lapses. This therefore means that in the interim the order once put in the gazette begins to work immediately and if parliament disapproves it stops working and anything done during that period is legal in relation to that order. The determination of taxes value as stated in Section 10 of the Act is quite comprehensive. Subsection 10(b) the provisor seems to state that the commissioner is qualified to make an opinion on the purchase price of goods made or sold at the time when the tax is due. This however does not seem to take into account whatever mark-up would be made by the seller in the ordinary course of business.

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Section 12 provides for the recovery of tax by the seller, importer or vendor from the purchaser at the conclusion of the sale or service concerned.

Section 13 then provides for the dates upon which tax is payable and it is worth noting that in the case of manufacturers in Swaziland the date will be when the goods are sold by the manufacturer in that case of goods imported into Swaziland the date in which the goods are imported. But in the case of taxable services it is the date of accrual to the vendor of the consideration placed on the taxable service. In the case of accommodation, food or hotel or restaurant it is the date of accrual to the vendor of the consideration placed on such accommodation and food. This therefore represents obviously two methods upon which tax is considered due. One at the date when the goods are physically produced, sold or brought into Swaziland, the other when the account is rendered, which covers clauses c and d of Section 13. The commissioner has some flexibility as to when he may require payment and subsection 3 thereof provides the lee-way which however is limited in terms of the provisors under subsection 3.

Under subsection 4 if a person is not in terms of Section 14 then whatever tax lee-ways given to them shall not be later than ten days after the date on which the tax became payable.

Section 14 of the Act provides for the registration of persons liable to pay sales tax and includes manufacturers, persons rendering taxable services or hotels and restaurants. Those that are not covered by subsection 1 are covered by subsection 2 that the commissioner may decide that a person either than a vendor shall be registered in respect of any enterprise carried on by him.

It is worth noting here that the definition of person in the Act does not in anyway reflect a company, trust, partnership, a sole trader or any other legal entity and in fact only says the following:-

“person” includes the estate of a deceased person. The obvious interpretation of this would be that it is referring to what is generally ascertained a person in the law and merely including the estate of a deceased person.

Section 15 provides for records and accounts to be kept available for inspection. The law requires that the records and accounts shall be preserved for such periods the commissioner may require.

Section 16 then records that the commissioner may require returns and declarations for the payment of tax, in the form and manner in which the commissioner may require. Such persons after preparing that document will then compute tax in accordance with Section 6 and 10 above and pay to the commissioner within a period specified under Section 13.

Section 17 states that a person who Acts as an agent for another who is not resident in Swaziland and that agent is a resident that person shall be at the direction of the commissioner be substituted for the owner of the goods. Therefor that person shall be under no obligation to discharge the duties that are required under his agency agreement.

Section 18 gives the commissioner power to estimate tax for persons who have either not made a return or where the commissioner is not satisfied that the return furnished is true or correct or that that person has in fact not paid tax. Tax not payable on the amount shall attract interest which shall be calculated at the rate of 2% for each calendar month or part of a month during which it remains unpaid. The commissioner may however remit the whole or any of the interest payable under this section where he considers the circumstances warranting. Where tax needs to be recovered the commissioner has a simplified way of dealing with it in that he produces by motion a certificate signed by him that an amount or interest owing is due and that certificate by him shall prima facie be proof of the correct amount, he can then institute proceedings for registration for the estate for any person and shall be deemed to be the creditor in respect of any tax or interest payable by such person under this Act.

Section 21 provides that the minister may remit wholly or partly tax payable in respect of taxable transactions and tax payable by any persons or class of persons. 156

It again seems clear that a definition of persons would have been appropriate in the above definitions clause.

Section 22 provides circumstances when tax may be refunded but states that such tax shall be refunded on application of the person to whom the tax should be refunded within a specified period of time. If the tax cannot be ascertained with any certainty then the commissioner may grant a refund in an amount specified by him at his discretion.

Section 23 states that any person who has been erroneously refunded or repaid or where tax has been remitted for any reason shall if it is found to be an error, shall repay that money and in fact if a demand is made in terms of the law then the commissioner can proceed to court if that person does not make payment within the time specified.

Section 24 lays down the offences and Section 25 lays down the penalties for any such offences.

Section 26 seems to state that where a body corporate or a firm commits an offence then every person who is a director, officer, or partner of that entity shall be guilty of an offence. Again no mention is made of sole traders or trusts as persons in law.

Section 27 refers to the seizure of the commissioner of any money that may be deposited by a person who has been found guilty of any provisions of this Act and who has deposited an amount of money with the commissioner in lieu or as part payment of whatever fine. This the commissioner can do summarily without legal proceedings. Should a person be aggrieved by a decision of the commissioner, that person may make an appeal to the minister within three months of the forfeiture of the money and the minister’s decision on appeal shall be final. It is interesting to note also that the penalty referred to shall not be regarded as a conviction in respect of a criminal offence but no prosecution for the criminal offence shall be competent thereafter. This in effect saying that whilst the penalty shall not be regarded as a criminal offence the issue however shall become res judicata as of the time of imposition of the penalty.

The minister in terms of Section 28 may make regulations for the better carrying out of the objects of the Act.

Section 29 states that the commissioner of taxes and the managing director of Swaziland Posts and Telecommunications may make arrangements as may be necessary in order for the collection and also for giving of information as may be necessary for the correction of tax.

Section 30 requires what is commonly known as a tax clearance certificate for the registering of aircraft, motor vehicle, tractor or any other goods requiring registration in Swaziland. This tax clearance or certificate issued by the commissioner must show that the tax which is payable in the Act has been paid in respect of any sale into Swaziland and that no taxable is payable under the Act in respect of any sale in relating to registerable goods.

Section 32 refers to the minister concluding agreements/ other governments for the collection of tax which is consigned to a person in Swaziland. That government shall collect the tax and shall pay it to the government of Swaziland for the benefit of the consolidated fund.

Section 33 repeals the hotels taxation order 1973. The first schedule of the Act then gives the rate of sales tax for various goods. The second schedule begins by giving exemptions/certain exemptions for imported goods and then under division two also gives an exemption for certain other goods begin with goods purchased by the King and the Indlovukazi. The third schedule then gives exemption of goods manufactured and produced in Swaziland. The fourth schedule then begins with taxable services and list a number of services in which some might be turned in corporeal and then gives exemptions of sales tax on taxable services.

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The Sales Tax Act, 1983

Date of commencement: 15th September, 1984.

Date of Assent: 9 November, 1983.

An Act to provide for the levying of sales tax, the repeal of the Hotel and Restaurant Taxation Order, 1973 and other matters incidental thereto.

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY

Section. 1. Short title. 2. Interpretation.

PART II

ADMINISTRATION

3. Commissioner to administer the Act. 4. General duties and powers of officers. 5. Secrecy.

PART III

SALES TAX

6. Levy of sales tax. 7. Settlement of disputes. 8. Exemptions. 9. Power to amend rate of tax or schedules. 10. Determination of taxable value. 11. Persons liable to pay Sales tax. 12. Recovery of sales tax from purchaser by vendor. 13. Date of payment of sales tax.

PART IV

REGISTRATION AND DUTIES OF VENDORS

14. Registration of persons liable to pay sales tax. 15. Records and accounts to be available for inspection. 16. Returns, declarations and payment of sales tax. 17. Substitution of agent for person not resident in Swaziland. 18. Estimates of tax on failure of vendor to furnish return. 19. Interest on unpaid tax. 20. Recovery of tax.

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PART V

REMISSION, REBATE AND REFUND

21. Remission and rebate of tax. 22. Refund of tax. 23. Erroneous remission, rebate and refund of tax.

PART VI

OFFENCES AND PENALTIES

24. Offences. 25. Penalty for offences. 26. Offences by bodies of persons. 27. Compounding of offences.

PART VII

MISCELLANEOUS

28. Regulations. 29. Arrangement for collection of tax on imported goods. 30. Registration of certain goods prohibited in certain circumstances. 31. Relief allowable to certain diplomats. 32. Agreement with other governments. 33. Repeal.

SCHEDULES

FIRST SCHEDULE : SALES TAX RATES

SECOND SCHEDULE : EXEMPTIONS — Imported Goods

THIRD SCHEDULE : EXEMPTIONS — Goods manufactured or produced in Swaziland

FOURTH SCHEDULE : TAXABLE — Services

PART I

PRELIMINARY

Short title.

1. This Act may be cited as the Sales Tax Act, 1983.

Interpretation.

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

“Act” includes any regulation made under section 28;

“Common customs area” means the area comprised by the countries the Government of which are parties to the 1969 Customs Union Agreement;

“court” means a court of competent jurisdiction in Swaziland;

“Customs Act” means the Customs, Fiscal, Excise and Sales Duties Act, 1971 (Act No. 21 of 1971); 159

“Department” means the Department of Customs & Excise;

“enterprise” means any commercial, industrial or other business of a continuing nature carried on in Swaziland in relation to which sales tax is required to be determined in accordance with section 6 and 10;

“goods” means corporeal movable things excluding coin and paper currency, marketable securities and postage stamps;

“goods transferred” means goods removed to Swaziland in terms of regulation 44 of the Customs Excise and Sales Duties Regulations, 1976;

“home consumption” means consumption or use in Swaziland;

“hotel” means any hotel licensed as such under the Trading Licenses Order, 1975 or any other law, and includes any other accommodation establishment which the Minister has declared to be an hotel for the purposes of this Act;

“importer” means any person who, at the time of importation — (a) owns any goods imported; (b) carries the risk of any goods imported; (c) represents that or acts as if he is the importer or owner of any goods imported; (d) actually brings any goods into Swaziland; (e) is beneficially interested in any way whatever in any goods imported; or (f) acts on behalf of any person referred to in paragraphs (a), (b) or (c);

“locally” means in any part of Swaziland;

“manufacture” includes any process — (a) in the manufacture of any goods; (b) whereby the taxable quantity or value of any goods is increased in any manner; (c) in the packing or measuring-off of any taxable goods which the Commissioner in his discretion deems to constitute manufacture;

“Minister” means the Minister responsible for public finance;

“occasional sale” means a sale of goods other than a sale of goods constituting assets of the seller’s enterprise or a sale of goods to which section 30 applies which is not one of a series of sales sufficient in number and scope as to constitute a regular activity of the seller;

“officer” means any person employed on any duty relating to sales tax authorised by the Commissioner in writing whether such authorisation has been given before or after the performance of the said duty;

“owner” includes any person lawfully acting on behalf of the owner;

“person” includes the estate of a deceased person;

“place of entry” means a place of entry into Swaziland appointed by the Minister under the Customs Act;

“restaurant” means any restaurant licensed as such under the Trading Licenses Order, 1975 or any eating house which the Minister has declared to be a restaurant for the purposes of this Act;

“sales tax” has the meaning assigned to it under section 6;

“Schedule” means any Schedule of goods or services referred to in section 6 and 8 as amended from time to time under this Act and includes the general notes to any such Schedule;

“Secretary” means the Secretary for Customs and Excise;

“tax” means sales tax;

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“taxable service” means any service specified in the Fourth Schedule;

“taxable value” means a taxable value determined under section 10;

“vendor” means any person who carries on any enterprise. (2) The provisions of the Customs Act, and the regulations made thereunder, relating to the importation, transit, exportation and customs clearance of goods shall mutatis mutandis have effect as if enacted in this Act.

PART II

ADMINISTRATION

Commissioner to Administer the Act.

3. (1) The Commissioner shall, subject to the direction of the Minister, be charged with the administration of this Act, including the interpretation of the Schedules. (2) Any duties or powers conferred upon the Secretary may be performed or exercised by the Commissioner personally or by an officer acting under the control, direction or supervision of the Commissioner. (3) Any decision made and any notice or communication issued or signed by any such officer may be withdrawn or amended by the Secretary or by the officer concerned (with effect from the date of making the decision or issuing or signing the notice or communication, or the date of withdrawal or amendment thereof) and shall, until it has been so withdrawn or amended be deemed (except for the purpose of this subsection) to have been made issued or signed by the Secretary.

General duties and powers of officers.

4. (1) For the purposes of this Act any officer may — (a) without previous notice, at any time during the day enter any premises whatsoever and on such premises search for any accounts, books, moneys, records or other documents; (b) in carrying out any such search, open or cause to be opened or removed and opened, any article in which he suspects any accounts, books, moneys, records or other documents are kept; (c) seize any such accounts, books, records, or other documents which in his opinion may afford evidence which may be material in assessing the liability of any person for any tax payable under this Act; (d) retain any such accounts, books, records or other documents for as long as they may be required for any assessment or for any criminal or other proceedings under this Act. (2) Any officer referred to in subsection (1) shall on demand produce the written authority issued to him by the Commissioner. (3) The owner of any accounts, books, records or other documents seized under subsection (1) shall be entitled to examine and make copies thereof or extracts therefrom during normal office hours under such supervision as the Commissioner may determine.

Secrecy.

5. (1) No officer shall, except for the purposes of this Act, or when required to do so as a witness in a court of law: (a) disclose to any person any matter or information in respect of any person, firm or business acquired in the exercise of his powers or the performance of his duties under this Act; (b) permit any person to have access to any records in the possession of the Commissioner or any other officer: Provided that the Auditor-General shall in the performance of his duties under the Finance and Audit Act, 1967, have access to all records and documents in the possession or custody of the Commissioner for the purposes of this Act. Provided further that the Commissioner of Taxes shall, for purposes of rendering the Income Tax Consolidation Order, 1975 more effective, have access to any information, records and documents in the possession or custody of the Commissioner under this Act. (Added A.9/1991.)

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(2) Subsection (1) shall not be construed as preventing the Commissioner form using for the purposes of any other law administered by him any information obtained by him in the exercise of his powers or the performance of his duties under this Act. (3) Any person who contravenes subsection (1) shall be guilty of an offence.

PART III

SALES TAX

Levy of sales tax.

6. Subject to section 8 there shall be charged, levied, collected and paid into the Consolidated Fund of Swaziland a tax to be known as “sales tax” in respect of — (a) the first sale of goods imported into Swaziland; (b) the first sale of goods manufactured in Swaziland; (c) every taxable service rendered by any person in course of any enterprise carried on by him; (d) accommodation let and food supplied to any person on the premises at which the business of an hotel or restaurant is being conducted; and (e) goods imported or manufactured by any person which are applied by such person to his private or domestic use or consumption or for the use or consumption thereof in any enterprise carried on by him or by any other person, and such tax shall be computed by reference to the taxable value of such sales, services and accommodation lettings at the rate specified in the First Schedule.

Settlement of disputes.

7. If there is any dispute as to whether any transaction is liable to tax, such dispute shall be decided by the Minister whose decision thereon shall be final.

Exemptions.

8. Sales tax will not be payable in respect of any taxable value which, but for the provisions of this section, would be determinable in respect of the following, namely: (a) such goods imported into Swaziland as are specified in the Second Schedule; (b) such goods manufactured or produced in Swaziland as are specified in the Third Schedule; (c) the sale of goods for export from Swaziland; (d) such service provided to persons and organisations as specified in the Fourth Schedule. (Replaced A.9/1991.) (e) the importation of goods liable to tax in any case where it is shown to the satisfaction of the Commissioner that the goods had been previously exported from Swaziland and are in substantially the same state as they were at the time of their exportation and that any tax which was leviable in respect of the goods has been paid; (f) such other taxable transactions as the Minister may direct.

Power to amend rate of tax or Schedules.

9. (1) The Minister may, by order published in the Gazette — (a) amend, vary or replace the First Schedule; and (b) amend any Schedule to this Act whenever he deems it expedient to do so.

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(2) Every order made under subsection (1) shall be submitted for the approval, to be signified by resolution of Parliament within fifteen days of the order being made, or, if Parliament is not meeting, within fifteen days after it next meets. (3) If any such order is not submitted to Parliament within the time specified in sub-section (2), or if so submitted is not approved by Parliament, the order shall thereupon lapse, but without detracting from the validity of such order before it so lapsed.

Determination of taxable value.

10. For the purposes of this Act, the taxable value to be placed on the sale of any goods or services shall be — (a) in the case of the sale of any goods, the sum of all the amounts of considera-tion accruing to the seller in respect of such sale; (Amended A.9/1991.) (b) in the case of good transferred to Swaziland from places within the common customs area, the full and final price paid for the goods by the transferee, including all charges in respect of freight and insurance and any taxes and duties paid in respect of such goods in the country of despatch; (Replaced A.9/1991.) Provided that where there is any dispute or doubt as to the taxable value declared in the case of the sale of any goods or of goods transferred to Swaziland from places within the common customs area, the price which in the opinion of the Commissioner the goods would fetch on a sale made at the time when the tax in respect of the goods becomes due by a person selling such goods in the open market in Swaziland to a retail trader carrying on business in Swaziland shall be the taxable value. (Added A.9/1991.) (c) in the case of imported goods and goods removed from a bonded warehouse which require to be entered in terms of the Customs Act and are cleared for home consumption in Swaziland, the value thereof for customs or excise duty purposes, as appropriate, plus any duties levied under the said Act in respect of the importation or removal from bond of such goods, plus 10 per cent of the sum of the said value and duties; (Replaced A.9/1991.) (d) in the case of any prescribed service rendered, each amount of the consideration which accrued to the person rendering such service; and (e) in the case of hotel accommodation or restaurant sales each amount (including any cover charge) of consideration which accrued to the person carrying on the hotel or restaurant enterprise concerned.

Persons liable to pay sales tax.

11. Sales tax shall be paid: (a) in the case of any sale of goods, by the seller; (b) in the case of goods imported into Swaziland, by the importer; (c) in the case of any taxable service, by the person by whom such service is rendered; and (d) in the case of accommodation let or food supplied by an hotel or restaurant, by the person carrying on the business of the hotel or restaurant concerned.

Recovery of sales tax from purchaser by vendor.

12. Notwithstanding anything to the contrary contained in any law, sales tax payable in terms of sections 6 and 11 shall be recoverable by the seller, importer or vendor from the purchaser at the conclusion of the sale or service concerned.

Date of payment of sales tax.

13. (1) Tax payable under this Act shall be deemed to be due and payable — (a) in the case of a sale of goods manufactured in Swaziland, the date upon which the goods are sold by the manufacturer; (b) in the case of any goods imported into Swaziland, on the date on which the goods are imported:

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Provided that goods which are entered under the Customs Act for home consumption in Swaziland shall for the purposes of this Act be deemed to have been imported on the date on which they are so entered; (c) in the case of any taxable service, on the date of accrual to the vendor of the consideration placed on such taxable service; and (d) in the case of accommodation let and food supplied by an hotel or restaurant, on the date of accrual to the vendor of the consideration placed on such accommodation and food. (2) For the purposes of this Act, the date of conclusion of a sale of goods shall be deemed to be the date on which delivery of the goods is effected under the sale or the date on which the consideration payable by the purchaser under the sale is paid in full, whichever date is the earlier. (3) The Commissioner may, subject to such security as he may require and to such conditions as he may impose in each case, permit payment of any tax due to be effected by any person registered under section 14 at monthly intervals: Provided that — (a) payment shall be made before the last day of the month next succeeding the month in which the tax became payable in terms of subsection (1); and (b) in the case of any tax due and payable in respect of any imported goods, tax shall be paid at the time of entry for home consumption of such goods under the Customs Act. (c) (Deleted A.9/1991.) (Amended A.9/1991.) (4) In the case of any tax due and payable by any person not registered in terms of section 14 such tax shall be paid at the time of importation of goods and for other transactions, not later than ten days after the date on which such tax has become payable. (Added A.9/1991.)

PART IV

REGISTRATION AND DUTIES OF VENDORS

Registration of persons liable to pay sales tax.

14. (1) Any vendor engaged in — (a) the manufacture or production of taxable goods; or (b) the rendering of taxable services; or (c) the operation of a hotel or restaurant; shall apply to the Commissioner for registration within one month of commencement of the enterprise. (2) Where the Commissioner decides any person, other than a vendor covered by subsection (1), should be registered in respect of any enterprise carried on by him, that person shall apply to the Commissioner for registration immediately the Commissioner notifies him in writing of this requirement. (3) Any person, not covered by subsections (1) and (2) may apply to the Commissioner for registration. (4) Applications for registration shall be accompanied by — (a) a declaration by the person or vendor in such form and containing such information relating to the enterprise concerned as the Commissioner may require for the purposes of this Act; and (b) an application fee of E10.00. (5) On registration of a person under this section the Commissioner shall issue to that person a certificate of registration after such security as the Commissioner may require under section 13(3) has been lodged with him. (6) Notwithstanding subsections (1) and (3), if the Commissioner has reason to believe that any person who has furnished a declaration in terms of subsection (4) — (a) has no fixed abode or business; or (b) does not keep proper accounting records relating to any enterprise carried on by him; or

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(c) has not opened a banking account with any bank, building society or similar institution for the purposes of such enterprise; he may refuse to register such person and shall give such person notice of such refusal: Provided that in the case of persons complying for registration under subsection (3) the Commissioner may refuse to register such person at his discretion. (Replaced A.9/1991.)

Records and accounts to be available for inspection.

15. (1) Every person who is required by this Act to be registered shall keep such records and accounts in such form, and shall preserve them for such periods, as the Commissioner may require. (2) Any person referred to in subsection (1) shall upon demand by the Commissioner or any officer produce to him such records or accounts referred to in such subsection as he may require and such person shall submit such particulars in connection with his enterprise to the Commissioner as the latter may from time to time require.

Returns, declarations and payment of sales tax.

16. (1) Every person who carries on any enterprise in relation to which tax is required to be determined in accordance with sections 6 and 10 shall, within the period specified in section 13(3) or 13(4), as appropriate, for the payment of tax — (a) furnish the Commissioner with a return in such form as he may require of the value of the transactions in respect of which tax has become payable by such person during the previous period and containing such information as the Commissioner may require; and (b) compute such tax in accordance with section 6 and 10 and pay it to the Commissioner within the period specified in section 13(3) or 13(4), as appropriate. (Amended A.9/1991.) (2) Every person registered under section 14 shall within the period allowed by sub-section (1) of this section furnish the return referred to in that subsection in respect of each month in relation to such transactions, whether or not tax is payable in respect of such month. (3) For the purpose of this section “month” means a calendar month or such other period as the Commissioner may authorise. (Amended A.9/1991.)

Substitution of agent for person not resident in Swaziland.

17. Where a person who is liable for payment of tax under this Act, or on whom any duties are imposed by this Act or regulations made thereunder, is not resident in Swaziland, the Commissioner may by notice in writing served on any agent, manager or factor who is resident in Swaziland and has acted on behalf of that person in the matters by reference to which that person is liable or those duties are imposed direct that he shall be substituted for that person as the person liable for the tax, or that he shall be under an obligation to discharge those duties or any of them.

Estimates of tax on failure of vendor to furnish return.

18. (1) Where — (a) any person required under this Act to furnish any return or make any declaration fails to do so; (b) the Commissioner is not satisfied that the tax return furnished by any person is true or correct; or (c) the Commissioner has reason to believe that any person liable for payment of tax under this Act has not paid such tax, the Commissioner may estimate the amount of tax due. (2) Where an estimate of the amount of tax due from any person has been made under subsection (1) then, without prejudice to the recovery of the full amount due to the making of a further estimate in that behalf, the amount estimated shall be recoverable as tax properly due unless in any action relating thereto the person liable proves the amount properly due, and that amount is less than the amount estimated. 165

Interest on unpaid tax.

19. Any tax due and payable which is not paid within the period specified in this Act shall bear interest on at the rate of two per cent for each month or part of a month during which it remains unpaid: Provided that where the Commissioner considers that the circumstances warrant it, he may remit the whole or any part of any interest payable under this section.

Recovery of tax.

20. (1) Any amount of tax or interest payable in terms of this Act shall constitute a debt to the Government and shall be recoverable by the Commissioner in the manner hereinafter provided. (2) If any person fails to pay any tax or interest payable in terms of this Act when it becomes due or is payable by him, the Commissioner may file with any competent Court a certificate signed by him stating the amount of tax or interest owing by that person, and such certificate shall be prima facie proof of the correctness of such amount. (3) The Commissioner may in consequence of the provisions of subsection (2) institute proceedings for the sequestration of the estate of any person, and shall for the purposes of such proceedings be deemed to be the creditor in respect of any tax or interest payable by such person under this Act.

PART V

REMISSION, REBATE AND REFUND

Remission and Rebate of Sales Tax.

21. (1) If the Minister is satisfied that it is in the public interest to do so, he may, by order published in the Gazette, and subject to such conditions as he may impose, remit wholly or in part — (a) tax payable in respect of any taxable transactions; and (b) tax payable by any person or class of persons. (2) Where any remission or rebate of tax is granted under subsection (1) on a condition that tax shall be payable in the event of any breach of any term or condition or on the occurrence of any event, such tax shall upon the breach of such term or condition or on the occurrence of such forthwith become due and payable by such person as may be specified in the order concerned.

Refund of tax.

22. (1) Where — (a) tax has been paid in respect of the taxable value of any goods manufactured in or imported into Swaziland and such goods have been subsequently exported; (b) tax has been paid in respect of the taxable value of any goods manufactured in or imported into Swaziland and such goods have been subsequently sold to a manufacturer registered under section 14 who has satisfied the Commissioner that such goods have been used in, wrought into or attached to manu-factured goods that have been sold or exported; or (c) any tax has been paid in respect of any taxable transaction which the Minister is satisfied it is in the public interest should be exempt from tax; (d) any tax has been paid in error, the Commissioner may refund the tax which has been paid in respect of the taxable value of such goods: Provided that no refund of tax shall be allowed where the total amount claimed is less than E10.00. (2) No refund of any tax under this section shall be made unless application is made to the Commissioner by the manufacturer or exporter or by the person who paid such tax in such form as the Commissioner may require, within one year of the time when any such refund first became payable or within such further time as the Commissioner may, in any particular case, allow.

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(3) Where by this section a refund of tax is payable and in the opinion of the Commissioner circumstances exist that render it difficult to determine the exact amount of such refund, the Commissioner may in lieu thereof grant a refund in an amount specified by him.

Erroneous remission, rebate and refund of Sales Tax.

23. (1) Where any tax has been remitted, rebated or refunded in error, the person to whom the remission, rebate or refund has been erroneously allowed or made shall, on demand by the Commissioner, pay the amount erroneously remitted, rebated or refunded, as the case may be. (2) Where a demand has been made for any amount of tax under subsection (1), such amount shall be deemed to be due from the person liable to pay the tax on the date upon which the demand was served upon such person and shall be recoverable in accordance with the provisions of section 20.

PART VI

OFFENCES AND PENALTIES

Offences.

24. Any person who — (a) fails to pay any tax on or before the due date; (b) makes or causes to be made any declaration, certificate, application, return, account or other document, which is false or incorrect in any particular; (c) wilfully does or fails to do anything with intent to avoid payment of any tax, interest, penalty or other sum for which he is liable under this Act; (d) when required in accordance with this Act to answer any question put to him by an officer, refuses to answer such question or makes any false or incorrect statement in reply thereto; (e) in any way is knowingly concerned in any fraudulent evasion of the payment of tax; (f) obtains any remission, rebate or refund of tax which to his knowledge he is not entitled to obtain; (g) refuses or fails to produce any information, document, account or return required from him by or under this Act on or before the time specified for such production by or under this Act or, where no such time has been so specified, within the time specified in any notice requiring him to produce the same; or (h) obstructs or otherwise interferes with any officer in the performance of his functions under this Act, shall be guilty of an offence.

Penalty for offences.

25. Any person guilty of an offence under this Act shall be liable on conviction to a fine not exceeding one thousand Emalangeni or to imprisonment for a term not exceeding one year, or to both such fine and imprisonment.

Offences by bodies of persons.

26. In the case of an offence committed under the Act by a body of persons — (a) where the body of persons is a body corporate, every director and officer of that body shall be deemed to be guilty of that offence; and (b) where the body of persons is a firm, every partner of that firm shall be deemed to be guilty of that offence: Provided that no person shall be deemed to be guilty of an offence under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence.

Compounding of offences.

27. (1) If any person —

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(a) has in the opinion of the Commissioner contravened any provision of this Act or failed to comply with any such provision with which it was his duty to comply; (b) agrees to abide by the Commissioner’s decision; and (c) deposits with the Commissioner such sum as the latter may require of him but not exceeding the maximum fine which may be imposed upon conviction for the contravention or failure in question, or makes such arrangements or complies with such conditions with regard to securing the payment of such sum as the Commissioner may require, the Commissioner may after such enquiry as he deems necessary determine the matter summarily and may, without legal proceedings, order forfeiture by way of penalty of the whole or any part of the amount so deposited or secured. (2) Anything done for the purposes of subsection (1) by an agent generally or specially authorised thereto by any person shall be deemed to have been done by that person in terms of that subsection. (3) Where any person is aggrieved by any order made by the Commissioner under subsection (1), he may appeal against such order to the Minister: Provided that — (a) such appeal shall be made within three months from the date of such order; (b) no such appeal shall be made where the penalty does not exceed one thousand Emalangeni; and (Amended A.9/1991.) (c) the Minister’s decision on any such appeal shall be final. (4) The imposition of a penalty under subsection (1) shall not be regarded as a conviction in respect of a criminal offence, but no prosecution for the relevant offence shall thereafter be competent. (5) Nothing in this section shall in any way affect liability to payment of any tax chargeable under this Act.

PART VII

MISCELLANEOUS

Regulations

28. The Minister may make regulations in regard to any matter which is permitted or required by this Act and generally for the better carrying out of the objects and purposes of this Act.

Arrangement for collection of tax on imported goods

29. The Commissioner and the Director of Posts and Telecommunications may make such arrangements as they may deem necessary — (a) for the collection by the Managing Director of the Posts and Tele-communications Corporation on behalf of the Commissioner of tax payable under this Act in respect of the taxable value of any goods imported into or transferred to Swaziland by post; and (Amended A.9/1991.) (b) for the exchange of such information as is necessary for the carrying out of such arrangements.

Registration of certain goods prohibited in certain circumstances

30. No registering authority in Swaziland shall register any aircraft, motor vehicle, tractor, caravan or any other goods requiring registration under any other law upon any change of ownership of such goods unless the person applying for registration produces to such registering authority a certificate issued by the Commissioner showing that — (a) any tax which may be payable under this Act has been paid in respect of any sale or importation into Swaziland, as the case may be, of the registrable goods in consequence of which the registration is required; or (Amended A.9/1991.) (b) no tax is payable under this Act in respect of any sale relating to the registrable goods in consequence of which registration is required.

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31. (Repealed A.9/1991.)

Agreement with other Governments

32. Notwithstanding the provisions of section 11 and 13, the Minister may conclude an agreement with any Government which is a party to the 1969 Customs Union Agreement in which it is provided that — (a) any tax payable in respect of goods sold and consigned to a person in Swaziland from a place within the territory of such Government may be collected by such Government; and (b) any such tax collected by such Government shall be paid to the Government of Swaziland for the benefit of the Consolidated Fund at such time and under such arrangements as may be agreed.

Repeal

33. (1) Subject to subsection (2), the Hotel and Restaurant Taxation Order, 1973, is hereby repealed. (2) Anything done under the order repealed by subsection (1) shall be deemed to have been done under the corresponding provisions of this Act.

FIRST SCHEDULE

(Replaced L.N.17/1986; L.N.42/1986; L.N.16/1989; Amended L.N.108/1996; L.N.100/1997; L.N.23/2001.)

RATES OF SALES TAX (Under Section 6)

The rate of sales tax referred to in section 6 of this Act shall be —

ITEM DESCRIPTION OF TRANSACTION RATE OF SALES TAX 1. The first sale of the undermentioned goods imported into Swaziland — (a) alcoholic beverages of all kinds other than traditional beer...... 25 per cent (b) manufactured tobacco in the form of cigars, cheroots, cigarillos, cigarettes, pipe tobacco and snuff ...... 25 per cent (c) any other taxable imported goods ...... 10 per cent (d) the sale of any other taxable goods ...... 14 per cent 2. The first sale of the undermentioned goods manufactured or produced in Swaziland — (a) alcoholic beverages of all kinds other than traditional beer...... 20 per cent (b) manufactured tobacco in the form of cigars, cheroots, cigarillos, cigarettes, pipe tobacco and snuff ...... 20 per cent (c) any other taxable manufactured or produced goods...... 10 per cent (d) the sales of any other taxable manufactured goods...... 14 per cent 3. Taxable services specified in the Fourth Schedule to this Act ...... 12 per cent 4. Accommodation let and food supplied by hotel or restaurant...... 14 per cent 5. Goods imported, manufactured or produced by any person applied for own use — the following: (a) alcoholic beverages of all kinds other than traditional beer...... 25 per cent (b) manufactured tobacco in the form of cigars, cheroots, cigarillos cigarettes, pipe tobacco and snuff...... 25 per cent 169

SECOND SCHEDULE (Under Section 8(a)) (Amended L.N.42/1986; Replaced L.N.16/1989; Amended L.N.128/1990; L.N.108/1996.)

EXEMPTIONS: IMPORTED GOODS

The categories of imported goods in respect of the value of which the exemption applicable under section 8(a) shall apply shall be as hereinafter set forth.

Division I

1. Goods imported into Swaziland from places outside the common customs area which fall under any heading and description mentioned below, to the extent indicated, and in respect of which no customs duty is payable in terms of the Customs Act — 406.00 Goods for the Head of State, Diplomatic and other Foreign Representatives. 407.01 Used personal effects and sporting or recreational equipment, imported as passengers’ baggage. 407.02 Goods imported in the same aircraft or vehicle as passengers’ baggage by any person and cleared at the place where he disembarks or enters Swaziland: (1) (a) Wine, not exceeding a total quantity of two litres per person; (b) Spirituous and other alcoholic beverages, not exceeding a total quantity of one litre per person; (c) Manufactured tobacco, not exceeding 400 cigarettes and 50 cigars and 250 g of cigarette or pipe tobacco per person; (d) Perfumery, not exceeding 300 ml per person. (2) Other new or used goods of a total value not exceeding E500 per person. 407.06 Household furniture and effects and other removable articles, including equipment necessary for the exercise of the trade or profession of the person including one motor vehicle, one caravan, one trailer, one boat, the bona fide property of a person including a returning resident of Swaziland and members of his family, imported for own use on change of residence to Swaziland. 412.02 Urns and coffins, containing human remains, together with flowers or wreaths. 412.04 Used property of a person normally resident in Swaziland who dies while temporarily outside Swaziland. 412.10 Bona fide unsolicited gifts of not more than two parcels per person per calendar year and of which the value per parcel does not exceed E400 (excluding goods contained in passengers’ baggage, wine, spirits and tobacco, cigarettes and cigars) consigned by persons abroad to persons in Swaziland. 412.11 Goods imported — (a) for the relief of distress of persons in cases of famine or other national disaster; (b) under any technical assistance agreement; or (c) in terms of an obligation under any multilateral international agreement to which Swaziland is a party. 412.12 Goods imported for any purpose agreed upon between the Governments of Swaziland, Botswana, Lesotho, Namibia and South Africa. 480.00 Goods temporarily admitted for specific purposes. 490.00 Goods temporarily admitted subject to exportation in the same state.

2. Any of the following items imported into Swaziland in respect of which entry need not be made in terms of the proviso to section 37(1) of the Customs Act: (i) containers temporarily imported; (ii) human remains;

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(iii) goods which in the opinion of the Commissioner of Customs and Excise are of no commercial value; (iv) goods imported under an international carnet.

Division II (Replaced L.N.102/1984; Amended L.N.42/1985; L.N.42/1986.) Goods imported into Swaziland from places outside or within the common customs area which fall under the following descriptions:

1. GENERAL — the following — 1.01 Goods purchased by the King and Indlovukazi. 1.04 Used personal and household effects, including one motor vehicle per family from within the Common Customs Area, one caravan, one trailer and one boat per family, imported for own use on change of residence to Swaziland. 1.05 Goods imported temporarily for purposes approved by the Commissioner subject to such conditions as the Commissioner may impose. 1.06 Goods imported by post of a taxable value not exceeding E100 per parcel. 1.07 Goods imported — (a) for the relief of distress of persons in cases of famine or other national disaster declared as such by the Minister; (b) under any technical assistance agreement; or (c) in terms of an obligation under any multilateral agreement to which Swaziland is a party. 1.08 Goods imported unsolicited and free by any organization of a public character approved by the Minister which carries on charitable activities, subject to the production at the time of importation of a written declaration by such organization or for free distribution by such organization in the furtherance of its charitable activities. 1.09 Goods imported by Diplomatic and other Foreign Representatives who are approved by the Minister.

2. GOODS IMPORTED FOR INDUSTRIAL PURPOSES — the following — 2.01 Raw materials approved by the Commissioner, other than goods imported by any enterprise specified in item 1.05 of the Third Schedule, intended to be so used in manufacture that such goods or some element thereof will form an integral part of other goods to be manufactured in Swaziland by registered manufacturers and will remain in the goods so manufactured as an element or essential thereof in their completely manufactured condition. 2.02 Containers into which manufactured goods or goods the product of any agricultural, horticultural, forestry or mining enterprise are placed and packaging material used for packing such goods on completion of the manufacture or production of such goods, if such containers or materials are used for the purposes of the sale to end consumers of such goods in such containers or packed in such materials and are conspicuously and permanently marked as to their intended contents. 2.04 (Deleted L.N.108/1996.) 2.05 Plant and machinery for factory installation which can either be Completely Knocked Down (CKD) or Semi Knocked Down (SKD), excluding spare parts for manufacturing and production.

3. GOODS IMPORTED FOR FARMING OR FORESTRY PURPOSES — the following — 3.01 Fertilizers, insecticides, fungicides, herbicides, rodenticides, livestock medicines and vaccines. 3.02 Seeds, shrubs, plants, bulbs, trees and other plant material for crops or produce, including plant ripeners. 3.03 Packing or wrapping materials and containers (other than pallets and returnable containers) used for the marketing of farming or forestry products provided the materials and containers are conspicuously and permanently marked as to their intended contents. 3.04 Livestock.

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3.05 Animal feeds and licks. 3.06 Animal Dips. 3.07 Farming machinery, including tractors, trailers, ploughs, cultivators, harrows and hoes, excluding parts. 3.08 Pipes, sprinklers and pumps specifically designed for field irrigation systems and identifiable as such.

4. IMPORTED FOODSTUFFS — the following — 4.01 Dairy products of all kinds, including eggs and powdered milk. 4.02 Maize, wheat, rice, sorghum, malt, peanuts and beans. 4.03 Flours, meals and sprouts of maize, wheat, rice, sorghum or malt. 4.04 Plain bread. 4.05 Meat and edible meat offals, fresh or frozen. 4.06 Fruit, fresh. 4.07 Vegetables, fresh or dried. 4.08 Sugar. 4.09 Salt. 4.10 Fish, fresh, frozen or canned, excluding crustaceans and molluscs. 4.11 Emahewu.

5. IMPORTED MEDICAL AND SURGICAL SUPPLIES — the following — 5.01 Drugs, medicines and medicinal preparations for therapeutic or prophylactic use. 5.02 Wadding, gauze, bandages and similar articles for medical or surgical purposes. 5.03 Dental cements, fillings and dentures. 5.04 Surgical and dental instruments and equipment and ophthalmic diagnostic equipment. 5.05 Spectacles and lenses for the correction of abnormal eyesight, excluding non-prescription glasses. 5.06 Hearing aids, including parts and accessories, for overcoming deafness.

6. GOODS IMPORTED BY HOTELS AND RESTAURANTS — the following — 6.01 Foodstuffs imported by any hotel or restaurant registered under Section 14 of the Act for use in the preparation of meals for sale by such hotel or restaurant.

7. PERSONAL IMPORTS — the following — 7.01 Tourists’ effects, including cameras, films and sporting, recreational and camping equipment imported by tourists for their comfort and convenience during their visit to Swaziland. 7.02 Used personal effects and equipment of all persons, including returning residents, entering Swaziland. 7.03 Personal imports, excluding motor vehicles, or any other goods requiring registration under any other law, carried and cleared through the Customs by visitors and returning residents at the time of their arrival in Swaziland for their personal use or consumption and not intended for sale or other commercial purposes to a taxable value of E1,500 per person subject to a maximum of E2,500 per family travelling together and subject to one importation only under this item per day. 7.03(a) Goods valued up to E1,000 imported per day by a licensed hawker subject to the provision of a valid trading License and completion of the baggage declaration form. 7.04 Fuel imported in the fuel tanks of vehicles provided the fuel tanks are fitted as standard equipment and the fuel is essential for the operation of the vehicle.

8. SCHOLASTIC MATERIALS — the following — 8.01 School exercise books. 8.02 Text books approved by the Minister of Education, printed and published specially for educational use in schools and colleges. 172

9. MISCELLANEOUS GOODS IMPORTED — the following — 9.01 to 9.05 inclusive (Deleted L.N.108/1966.) 9.06 Kerosene for heating or illumination purposes. 9.07 Water not bottled or packaged for retail sale. 9.08 Electrical energy imported by the Swaziland Electricity Board. 9.09 Returnable containers and pallets imported temporarily.

THIRD SCHEDULE

(Replaced L.N.102/1984; Amended L.N.74/1985; L.N.42/1986; Replaced L.N.16/1989; Amended L.N.128/1990; L.N.108/1996.)

(Under Section 8(b))

EXEMPTIONS: GOODS MANUFACTURED OR PRODUCED IN SWAZILAND

The categories of goods manufactured or produced in Swaziland in respect of which the exemptions under section 8(b) apply shall be as hereinafter set forth.

1. GENERAL — the following — 1.01 Goods purchased by the King and Indlovukazi. 1.04 Sales of electricity or water when delivered to purchasers through drains, lines, pipes, furrows, canals, barrels, drums or other containers. 1.05 All goods, other than motor vehicles, the product of any enterprise established in Swaziland in the ordinary course of which goods are manufactured for sale by any process of manufacture as defined in Section 2 in which the total proceeds from the sale of all goods by the enterprise do not exceed E20,000 in any calendar year. 1.06 Materials and components sold to manufacturers, other than materials and com-ponents sold to any enterprise specified in item 1.05 of this Schedule, intended to be so used in a manufacturing process that such materials or components will form an integral part of other goods to be manufactured. 1.07 Goods purchased — (a) under any technical assistance agreement between the Government of Swaziland and any other Government or international organization; (b) in terms of an obligation under any multilateral agreement to which Swaziland is a party. 1.08 Goods purchased prior to payment of sales tax by any organization of a public character approved by the Minister which carries on charitable activities, subject to the production at the time of purchase of an approved written declaration by such organization that the goods will be distributed free of charge by such organization in the furtherance of its charitable activities. 1.09 Goods purchased prior to payment of sales tax by Diplomatic and other Foreign Representatives who are approved by the Minister. 1.10 Goods, other than motor vehicles, manufactured or produced by individual private persons which are applied for the private use of those persons and not for resale.

2. AGRICULTURE AND FORESTRY MATERIALS AND PRODUCTS — the follow-ing — 2.01 Fertilizers, insecticides, fungicides, herbicides, rodenticides, livestock medicines and vaccines. 2.02 Plant material for the commercial production of crops or produce, including plant ripeners. 2.03 Packing or wrapping materials and containers used for the marketing of farming or forestry products provided the materials and containers are conspicuously and permanently marked as to their intended contents. 2.04 Animal feeds and licks.

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2.05 Animal Dips. 2.06 Farming machinery, including tractors and trailers, excluding parts. 2.07 Timber, rough, sawn or planed but not further worked or treated.

3. FOODSTUFFS — the following — 3.01 Foodstuffs sold to any hotel or restaurant registered under section 14 of this Act prior to payment of sales tax for use in preparation of meals for sale by such hotel or restaurant. 3.02 Dairy products, including eggs. 3.03 Maize, wheat, rice, sorghum and malt, including flours, meals and sprouts manufactured therefrom. 3.04 Plain bread. 3.05 Meat and edible meat offals, fresh or frozen. 3.06 Fruit and vegetables, fresh and dried. 3.07 Sugar. 3.08 Emahewu. 3.09 Fish, fresh, frozen or canned, excluding crustaceans and molluscs.

4. MEDICAL AND DENTAL GOODS — the following — 4.01 Drugs, medicines and medicinal preparations for therapeutic or prophylactic use.

5. SCHOLASTIC MATERIALS the following — 5.01 Exercise books for use in schools. 5.02 Text books printed and published specially for educational use in schools and colleges.

6. PACKAGING MATERIALS — the following — 6.01 Containers and packaging materials sold to other enterprises for use solely in the packaging of goods manufactured or produced in Swaziland by such enterprises for sale to end consumers provided the containers and materials are conspi-cuously and permanently marked as to their intended contents.

7. BUILDING MATERIALS (Deleted L.N.108/1966.)

FOURTH SCHEDULE (Repolaced L.N.17/1986; L.N.16/1989.) (Under Section 6(c))

A. Taxable Services

Note — For the purposes of item 3 of this Schedule —

“auctioneer” means any person who sells goods by auction or out of hand on behalf of another person, a local authority, a society or an association, or any person who conducts a sale by auction in the execution of an order of the court or in the course of the liquidation of the estate of a deceased or insolvent person or in the liquidation of any company.

1. PHOTOGRAPHIC SERVICES: 1.01 Development of photographic films. 1.03 Photographic services.

2. PRINTING AND PUBLISHING: 2.01 All Printing services.

3. AUCTIONEERS’ COMMISSION: 3.01 Receipt of commission on selling of goods by public auction.

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4. ESTATE AGENTS’ COMMISSION: 4.01 Property and estate management. 4.02 Commercial property sales. 4.03 Real estate appraisal.

5. ADMINISTRATION AND MANAGEMENT SERVICES: 5.01 Management consultancy. 5.02 Administration and management fees.

6. ACCOUNTING AND AUDIT SERVICES: 6.01 Accounting services. 6.02 Auditing services. 6.03 Bookkeeping services. 6.04 Data processing and tabulating services rendered as part of accounting or bookkeeping services. 6.05 Taxation services.

7. DATA PROCESSING SERVICES: 7.01 Data processing services. 7.02 Computer installation, programming and operations. 7.03 Processing punch cards and tapes. 7.04 Tabulating services. 7.05 Calculating services.

8. LEGAL SERVICES: (excluding legal services to individual human persons). 8.01 All legal services.

9. ARCHITECTURE, CIVIL ENGINEERING AND CONSULTING ENGINEERS: 9.01 Preparation of plans and drawings. 9.02 Supervision of construction. 9.03 Surveying services. 9.04 Quantity surveying services.

10. SECRETARIAL SERVICES: 10.01 All secretarial and typing services.

11. ADVERTISING SERVICES (excluding charges payable to the Swaziland Broadcasting and Information Services and the Swaziland Television Broad casting Corporation for the transmission of advertisements). 11.01 All charges made for advertisements intended for commercial or remunerative purposes.

B. Exemptions from sales tax on taxable services (Under Section 8(d))

1. The following shall be exempt from sales tax on the taxable services specified in this Schedule — (a) The Head of State, Diplomatic and other Foreign Representatives as approved by the Minister. (b) Organizations that have technical assistance agreements with Government. (c) Organizations under any multilateral agreements to which Swaziland is a party.

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THE IMMIGRATION ACT Commentary

This Act basically lays down the requirements for a valid entry into Swaziland. It first lists people of groups of persons who are considered to be prohibited immigrants for example, a person refusing to undergo a medical examination and a person convicted of murder in any country. These people can only enter Swaziland when the Chief Immigration Officer with the approval of the Minister, issues a prohibited Immigrants Pass thus permitting them to enter and remain temporarily in Swaziland for such period and subject to certain conditions as specified in the Pass.

According to this Act the presence in Swaziland of any person who is not a citizen of Swaziland shall unless authorised by the Act be unlawful, unless that person is in possession of a valid entry permit or a valid pass.

The Act lays down the procedure for acquiring an entry permit and states that if the immigration officer is satisfied that the conditions specified in the schedule in relation to whichever class being applied for have been met, he may in his discretion issue an entry permit of that class to that person. The person then has to pay the requisite fee for the permit within 90 days of notification. A person aggrieved by a decision refusing him an entry permit may appeal to the Minister whose decision shall be final.

The Act goes on to state that a person who has been issued with an entry permit may have that permit invalidated if he fails to commence employment occupation, trade, business within 14 days thereof. An entry permit issued in respect of a person not present in Swaziland at the time of issue shall be invalidated if he fails to enter Swaziland within 6 months from the date of issue.

The Act also lists a number of offences that may be committed by a person in contravention of this Act and the sentences attaching thereto.

This act has been in use since 1982 and the only changes that seem to have been made from time to time are in relation to the schedule of fees.

The Immigration Act 17 of 1982

Date of commencement: 1st March, 1987

An Act to consolidate the law in relation to immigration and to introduce new provisions relating thereto.

Arrangement of Sections.

PART I

PRELIMINARY

Section. 1. Short title. 2. Interpretation.

PART II

PROHIBITED IMMIGRANTS

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3. Prohibited Immigrants.

PART III

ENTRY AND REMOVAL OF IMMIGRANTS 4. Prohibition on entry without permit or pass. 5. Issue, variation and cancellation of entry permits. 6. Invalidation of entry permits. 7. Permits, etc., void for fraud, etc. 8. Power to remove persons unlawfully in Swaziland. 9. Advisory Committee. 10. Duties and liabilities of carriers.

PART IV

ADMINISTRATION, OFFENCES AND LEGAL PROCEEDINGS 11. Immigration officers. 12. Powers of immigration officers. 13. Power of arrest and search of persons. 14. Offences. 15. Evidence. 16. Burden of proof. 17. Institution and conduct of criminal proceedings.

PART V

REGULATIONS 18. Regulations.

PART VI

TRANSITIONAL PROVISIONS AND REPEALS 19. Temporary validity of permits and passes issued under repealed law. 20. Notice by Minister to apply for permits. 21. Issue of permits and passes after notice. 22. Transitional provisions regarding re-entry. 23. Repeal.

PART I

PRELIMINARY

Short title and commencement.

1. This Act may be cited as the Immigration Act, 1982 and shall come into operation on such date as the Minister may by notice in the Gazette, appoint.

Interpretation.

2. In this Act, except where the context otherwise requires: —

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“Chief Immigration Officer” means the person appointed in the public Service to be the Chief Immigration Officer and includes any person appointed in writing by the Chief Immigration Officer to act on his behalf;

“child” includes a child adopted under any law but does not include: (a) a married woman; or (b) a person who has attained the age of eighteen years;

“document” includes a passport, certificate of identity, travel document or any other document required for any purpose under this Act;

“employer” means any person, undertaking, contractor, corporation, company or body of persons who employs or wishes to employ any other person who is required to obtain or be in possession of an entry permit before being employed in Swaziland;

“entry permit” means an entry permit issued under section 5 of this Act, or a provisional entry permit issued under section 21 of this Act, and, where the context so requires, includes a residence permit or temporary residence permit issued under the repealed law;

“immigration officer” means any person appointed to that office pursuant to section 11 of this Act and includes the Chief Immigration Officer;

“localisation division” means that part of the Office of the Minister designated as the localisation division by an administrative instruction of the Minister;

“medical practitioner” has the meaning ascribed thereto by the Medical and Dental Practitioners Act, 1970;

“Minister” means the Minister responsible for immigration;

“pass” means a pass to enter and remain temporarily in, or to re-enter, Swaziland, issued under regulations made under this Act, and includes any class or description of pass which may be so prescribed;

“passport” means a passport issued to a person by or on behalf of the government of the State of which he is a subject, or a valid passport or other valid travel document or document of identity issued to a person by an authority recognized by the Government of Swaziland, such passport or document being completed and having endorsed thereon all particulars and endorsements and visas required from time to time by the government or authority issuing the passport or document or by the Government of Swaziland or by any written law;

“prohibited immigrant” has the meaning ascribed thereto in section 3 of this Act;

“the repealed law” means a law repealed by section 23 of this Act.

PART II

PROHIBITED IMMIGRANTS

Prohibited immigrants.

3. (1) In this Act, a prohibited immigrant means a person who is not a citizen of Swaziland and who is — (a) incapable of supporting himself and his dependants (if any) in Swaziland; (b) a person who refuses to submit to examination by a medical practitioner after being required to do so under section 12(1)(d) of this Act; (c) a person who, not having received a free pardon, has been convicted in any country, including Swaziland, of murder or of any offence for which a sentence of imprisonment has been passed for any term and who, by reason of such conviction, is considered by the Minister to be an undesirable immigrant; (d) a person or a member of a class of persons who, in consequence of information received from any government or from any other source considered by the Minister to be reliable, is considered by the

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Minister to be an undesirable immigrant or whose presence in Swaziland is declared by the Minister to be contrary to the national interests; (e) a person who, upon entering or seeking to enter Swaziland, fails to produce a valid passport to an immigration officer on demand or within such time as that officer may allow; (f) a person who was, immediately before the commencement of this Act, a prohibited immigrant within the meaning of the repealed law; (g) a person whose presence in or entry into Swaziland is unlawful under any written law other than this Act; (h) a person in respect of whom there is in force an order made or deemed to be made under section 8 of this Act directing that such person shall be removed from and remain out of Swaziland; (i) a dependant of any of the persons mentioned in the foregoing paragraphs of this subsection. (2) The Chief Immigration Officer may, with the approval of the Minister, issue a prohibited immigrant’s pass to a prohibited immigrant, permitting him to enter and remain temporarily in Swaziland for such period and subject to such conditions as may be specified in that pass.

PART III

ENTRY AND REMOVAL OF IMMIGRANTS

Prohibition on entry without permit or pass.

4. (1) Subject to this section, no person other than a citizen of Swaziland, shall enter Swaziland unless he is in possession of a valid entry permit or a valid pass. (2) Subject to this section, the presence in Swaziland of any person who is not a citizen of Swaziland shall, unless otherwise authorized under this Act, be unlawful, unless that person is in possession of a valid entry permit or a valid pass. (3) This section shall not apply to — (a) the accredited representative to Swaziland of the Government of any Commonwealth country, and the wife and any child of such representative; (b) the accredited envoy to Swaziland of a foreign sovereign State, and the wife and any child of such envoy; (c) a person whose name appears in a list published under section 5 of the Diplomatic Privileges Act, 1968 in connection with a public international organisation referred to in section 9 of that Act and the wife and any child of any such person; (d) the accredited diplomatic or consular staff of the persons referred to in paragraphs (a) and (b) of this subsection, and the wives and any children of any such accredited diplomatic or consular staff; (e) the official staff of the persons referred to in paragraphs (a) and (b) of this subsection, and the wives and any children of any such official staff; (f) the domestic staff of the persons referred to in paragraphs (a), (b) and (c) of this subsection, and the wives and any children of any such domestic staff; (g) any person in the employ of the Swaziland Government and his wife and dependants under the age of twenty one years; (h) any person, or class or description of persons, exempted by the Minister from the provisions of this section by notice in the Gazette. (4) Where any person ceases to be a person to whom subsection (3) of this section refers, then, after the expiration of such reasonable period following that cessation as the Chief Immigration Officer may in his discretion allow for the departure of that person from Swaziland, his presence in Swaziland shall, unless otherwise authorized under this Act, be unlawful. (5) For the purpose of this section, “domestic staff” means any person employed in or about a private dwelling house occupied by a person referred to in paragraphs (a), (b) and (c) of subsection (3).

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Issue, variation and cancellation of entry permits.

5. (1) There shall be the classes of entry permits specified in the Schedule to this Act, and the Minister may, by notice in the Gazette, amend the Schedule. (2) Where a person, other than a prohibited immigrant has made application in the prescribed manner for an entry permit of a particular class, and has satisfied an immigration officer that he or the person whom he wishes to employ, as the case may be, belongs to that class and that the conditions specified in the said Schedule in relation to that class are fulfilled, the immigration officer may, in his discretion, issue an entry permit of that class to that person. (3) Any person who has applied for an entry permit of any class other than I or J and who is aggrieved by a decision refusing him such an entry permit may, in the manner and within the time prescribed, appeal against that decision to the Minister, whose decision shall be final and shall not be questioned in any court. (4) Before making a decision under subsection (3), the Minister shall seek the advice of the Committee established under section 9 but shall not be bound by any advice given to him by the Committee. (5) The Chief Immigration Officer may vary the terms and conditions of any entry permit issued under this Act and may with the written consent of the Minister cancel such permit.

Invalidation of entry permits. 6. (1) Where an entry permit, other than an entry permit of class I or J has been issued to a person, and that person, without having obtained the written approval of an immigration officer — (a) has failed to engage, within fourteen days of the date of issue of the entry permit or such other period as may be specified on the permit, or of that person’s entry into Swaziland, whichever is the later, in the employment, occupation, trade, business or profession in respect of which that entry permit was issued; or (b) has ceased to engage in the said employment, occupation, trade, business or profession; or (c) has engaged in any employment, occupation, trade, business or profession, whether or not for remuneration or profit, other than the said employment, occupation, trade, business or profession, that entry permit shall thereupon cease to be valid and the presence of that person in Swaziland shall, unless otherwise authorized under this Act, be unlawful. (2) Where an entry permit of class I or J has been issued to a person, and that person, without having obtained the written approval of the Chief Immigration Officer, engages in any employment, occupation, trade, business or profession whether or not for remuneration or profit, that entry permit shall thereupon cease to be valid and the presence of that person in Swaziland shall, unless otherwise authorized under this Act, be unlawful.

Permits, etc., void for fraud, etc. 7. Any entry permit, pass, certificate or other authority, whether issued under this Act or under the repealed law, which has been obtained by or was issued in consequence of fraud or misrepresentation, or the concealment or non-disclosure, whether intentional or inadvertent, of any material fact or circumstance, shall be and be deemed always to have been void and of no effect.

Power to remove persons unlawfully in Swaziland. 8. (1) The Minister may by order in writing direct that any person whose presence in Swaziland was, immediately before the making of that order, unlawful under this Act, shall be removed from and remain out of Swaziland either indefinitely or for such period as may be specified in the order. (2) Before making an order under subsection (1) the Minister shall seek the advice of the Committee established under section 9 but shall not be bound by any advice given to him by the Committee. (3) A person to whom an order made under this section relates shall — (a) be removed to the place from whence he came, or with the approval of the Minister, to a place in the country to which he belongs, or to any place to which he consents to be removed if the Government of that place consents to receive him;

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(b) if the Minister so directs, be kept in custody until his departure from Swaziland, and while so kept shall be deemed to be in lawful custody. (4) Subject to this section, an order made under this section shall be carried out in such manner as the Minister may direct. (5) Any order made or directions given under this section may at any time be varied or revoked by the Minister by further order in writing. (6) Any order made before the commencement of this Act under the repealed law directing that a person be removed or deported from Swaziland and remain out of Swaziland, whether indefinitely or for a specified period, shall for all the purposes of this Act (including the exercise of the Minister’s powers under subsections (3), (4) and (5) of this section) be deemed to be an order made under this section. and shall be enforced accordingly. (7) An order made or deemed to have been made under this section shall, for so long as it provides that the person to whom it relates shall remain out of Swaziland, continue to have effect as an order for the removal from Swaziland of that person whenever he is found in Swaziland and may be enforced accordingly: Provided that nothing in this subsection shall prevent the prosecution for an offence under this Act or any other written law of any person who returns to Swaziland in contravention of such an order. (8) Where a person is charged with the offence or unlawfully entering Swaziland or being unlawfully present in Swaziland, and the court is informed that an application to the Minister for an order under this section has been made or is about to be made, the court may order that such person be detained in prison or in police custody for a period not exceeding fourteen days, pending a decision by the Minister.

Advisory Committee.

9. (1) The Prime Minister shall, in consultation with the Minister, establish an Immigration Advisory Committee (hereinafter referred to as the Committee) which shall consist of such members as he may appoint on such terms and conditions, including the payment of such fees and allowances, as he may determine. (2) The Committee shall consider and advise the Minister upon any matter affecting Immigration referred to it by the Minister. (3) The Committee shall regulate its own procedure.

Duties and liabilities of carriers.

10. (1) The captain of an aircraft, the guard of a train or the person in charge of a vehicle arriving from or leaving for any place outside Swaziland, or the owner of or agent for such aircraft, train or vehicle, shall, if so required by an immigration officer, furnish a list in duplicate, signed by himself or by some person authorized to sign it on his behalf, of the names of all persons in the aircraft, train or vehicle, and such other information as may be prescribed. (2) The captain of an aircraft or the guard of a train about to call at any place outside Swaziland, shall, if so required by an immigration officer, take into his custody any person in respect of whom an order has been made under section 8 of this Act, or any person to whom section 13(2) of this Act applies, and, on due payment, afford that person a passage to that place and proper accommodation and maintenance during that passage. (3) Where any person who is conveyed to Swaziland in an aircraft is refused permission to enter Swaziland on the ground that he is a prohibited immigrant — (a) the captain of the aircraft shall, if so required by an immigration officer, take that person into his custody and secure that he is removed from Swaziland; (b) the captain, the owner and the agent in Swaziland of the aircraft, shall be jointly and severally liable to pay to the Government all expenses incurred by the Government in respect of the transport and maintenance of that person and his removal from Swaziland, and the amount of such expenses shall be a civil debt recoverable by the Government. (4) Any person who is taken into custody of the captain of an aircraft or the guard of a train pursuant to this section shall be deemed to be in lawful custody while he is in Swaziland.

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PART IV

ADMINISTRATION OFFENCES AND LEGAL PROCEEDINGS

Immigration officers.

11. (1) There shall be a Chief Immigration Officer and such number of immigration officers as may be necessary for the purpose of this Act. (2) In the performance of their functions under this Act, the Chief Immigration Officer and immigration officers shall act in accordance with such instructions as may be given by the Minister. (3) The Chief Immigration Officer may delegate to an immigration officer in writing, any or all of the powers conferred upon him by this Act. (4) Every immigration officer shall be given a certificate of identity signed by the Chief Immigration Officer, and shall, if so required by any person, produce the certificate as proof of his identity.

Powers of immigration officers.

12. (1) For the purposes of any of his functions under this Act, the Chief Immigration Officer and any immigration officer shall have power — (a) to board, enter, and search any aircraft, train or vehicle in Swaziland; (b) to require any person seeking to enter Swaziland to answer any question or to produce any document in his possession for the purpose of ascertaining whether that person is or is not a citizen of Swaziland and, in the case of any person who is not a citizen of Swaziland, for the purpose of determining whether that person should be permitted to enter Swaziland under this Act; (c) to require any person seeking to enter or leave Swaziland to produce to him a valid passport and any form of declaration that may be prescribed; (d) to require any person seeking to enter Swaziland to submit to examination by a medical practitioner. (2) An immigration officer investigating any offence or suspected offence under this Act shall have all the powers and immunities conferred by law on a police officer for the purpose of such investigation.

Power of arrest and search of persons.

13. (1) Any immigration officer or police officer who has reasonable cause to suspect that a person has committed an offence under this Act, or is unlawfully present in Swaziland, may, if it appears to him to be necessary to do so in order to ensure that the purposes of this Act shall not be defeated, arrest that person without warrant; and sections 23 and 30 of the Criminal Procedure and Evidence Act, 1938, shall apply to any such arrest as if the reference in the said section 23 to a peace officer included a reference to an immigration officer. (2) Any person other than a citizen of Swaziland or a person in possession of an entry permit or pass who having been deported from any country, enters Swaziland on his way to his final destination, may be arrested without warrant by any immigration officer or police officer and may be detained in police custody for as long as is necessary for arrangements to be made for his departure from Swaziland, and shall be deemed to be in lawful custody while so detained. (3) Any person who is detained under this Act shall, upon entering Swaziland and on demand made by an immigration officer, police officer or prison officer, submit to having his photograph and his finger prints or palm prints taken by such officer or by any other person appointed for that purpose. (4) A person who is not a citizen of Swaziland shall, on being required to do so by an immigration officer or a police officer: — (a) declare whether or not he is carrying or conveying any written matter; (b) produce to the officer any documents which he is carrying or conveying; and an immigration officer or police officer may search any such person, and any baggage belonging to him under his control, in order to ascertain whether that person is carrying or conveying any documents, and may examine, and may detain for such time as he thinks proper for the purpose of examination, any documents produced to him or found on such a search. 182

(c) An Immigration Officer or Police Officer, who detains any document or any written matter under this subsection, shall issue a receipt therefore. (5) An immigration officer may by summons in writing require any person other than a citizen of Swaziland to attend at his office and to furnish to that officer such information, documents and other particulars as are necessary for the purposes of determining whether that person should be permitted to remain in Swaziland. (6) Except where the informant or complainant gives permission to the contrary, an immigration officer shall treat as confidential the source of any information or complaint concerning a breach of the provisions of this Act or any other law, even where such information or complaint is the reason for an inspection, visit or enquiry by the immigration officer.

Offences.

14. (1) Any person who — (a) makes, whether within or outside Swaziland, any false declaration or statement, which he knows or has reasonable cause to believe to be false or misleading, for the purpose of obtaining or assisting another person to obtain any entry permit, pass, written authority, consent or approval under this Act; or (b) knowingly gives false information to any immigration officer seeking information material to the exercise of any of his powers under this Act; or (c) alters or wilfully defaces any entry permit, pass, written authority, consent or approval, or any entry or endorsement in any passport, issued, granted or made under this Act or under the repealed law; or (d) knowingly uses or has in his possession any forged passport, entry permit, pass, written authority, consent or approval, or any passport, entry permit, pass, written authority, consent or approval which has been altered or issued without lawful authority, or any passport or similar document in which any entry visa, or endorsement has been forged, or altered or issued without lawful authority; or (e) unlawfully gives, sells or parts with the possession of any passport, entry permit, pass, written authority, consent or approval intending or knowing or having reasonable cause to believe that it may be used by any other person; or (f) uses as a passport, entry permit, pass, written authority, consent or approval issued to him, any entry permit, pass, written authority, consent or approval issued to another person; or (g) having left or been removed from Swaziland in consequence of an order made or deemed to have been made under section 8 of this Act, is found in Swaziland while that order is still in force; or (h) being a prohibited immigrant and not having a valid prohibited immigrant’s pass, enters or remains in Swaziland or fails to comply with an order of an immigration officer to leave Swaziland; or (i) harbours any person whom he knows or has reasonable cause to believe to be a person who has committed an offence under paragraph (g) or paragraph (h) of this subsection; or (j) corruptly or improperly issues or gives an entry permit, pass, document, authority, consent or approval to any other person, shall be guilty of an offence and liable to a fine not exceeding one thousand emalangeni or to imprisonment for a term not exceeding one year or both such fine and imprisonment. (2) Any person who — (a) wilfully obstructs or impedes any immigration officer or police officer in the exercise of any of his powers under this Act; or (b) refuses or neglects to answer any questions, to furnish any information, to produce any document, to attend at any place or to submit to medical examination, when required to do so under this Act; or (c) unlawfully enters or is unlawfully present in Swaziland in contravention of this Act; or (d) harbours any person whom he knows or has reasonable cause to believe to be a person who has committed an offence under paragraph (c) of this subsection; or

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(e) fails to comply with any term or condition imposed by an entry permit or pass, being a term or condition which he is required to comply with; or (f) not being a citizen of Swaziland engages in any employment, occupation, trade, business or profession, whether or not for profit or reward, without being authorised to do so by an entry permit, or exempted from this provision by regulations made under this Act; or (g) employs any person (whether or not for reward) whom he knows or has reasonable cause to believe is committing an offence under paragraph (f) of this subsection by engaging in that employment, shall be guilty of an offence and liable to a fine not exceeding five hundred emalangeni or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment: Provided that no person shall be guilty of an offence under paragraph (b) of this subsection for refusing or neglecting to answer a question, furnish any information or produce any document which tends to incriminate him. (3) Any reference in subsections (1) and (2) of this section to an entry permit, pass, written authority, consent or approval includes a reference to any such document issued under the repealed law. (4) For the purposes of paragraphs (f) and (g) of subsection (2) of this section, a person who performs for the benefit of or at the request of another person any work or service of a kind which is commonly performed by a person in employment, shall be deemed to engage in employment, and that other person shall be deemed to employ that person.

Evidence.

15. (1) In any legal proceedings under or for any of the purposes of this Act, a certificate purporting to be signed by a Minister, official, or duly accredited representative in Swaziland, of the government of any country shall be admissible without further proof as evidence of any of the following matters stated therein, namely: (a) the birth, and the date and place of birth, and the parentage, of any person stated in such certificate to have been born in such country; (b) the death or marriage, and the date, place and circumstances of the death or marriage, and the parentage, of any person stated in such certificate to have died or been married in such country; (c) the relationship by blood, marriage or adoption of any such person as aforesaid to any other person; (d) the true or the reputed name or names of any such person as aforesaid, or of either of the parents, or of the husband, wife or child of any other relative by blood, marriage or adoption of any such person; (e) the adoption of any child stated in such certificate to have been adopted in such country, and the date, place and circumstances of any such adoption, and the true or the reputed name or names of any child so adopted and of either of his natural or adoptive parents. (2) In any prosecution for an offence under this Act, a person shall be deemed to know the contents of any declaration or statement which he has signed or marked, whether or not he has read that declaration or statement, if he knows the nature of the document. (3) A copy of an order purporting to be signed by the Minister and to be made for any of the purposes of section 8 of this Act, or purporting to be signed by an immigration officer and to be made for any of the purposes of section 8(5) of this Act, shall be prima facie evidence of the matters contained therein.

Burden of proof.

16. Whenever in any legal proceedings under or for any of the purposes of this Act any one or more of the following questions is in issue, namely — (a) whether or not a person is a citizen of Swaziland; (b) whether or not a person is one of the persons mentioned in section 4(3) of this Act; (c) whether or not there has been issued or granted to any person any passport, certificate, entry permit, pass, authority, approval or consent, whether under this Act or under the repealed law; (d) whether or not any person was at any time entitled to any such issue or grant as is referred to in paragraph (c) of this section, 184 the burden of proof shall lie on the person contending that such person is a citizen of Swaziland, or one of the persons mentioned in section 4(3), or a person to whom such an issue or grant was made, or a person who was entitled to such an issue or grant, as the case may be.

Institution and conduct of criminal proceedings.

17. A prosecution for an offence under this Act may, without prejudice to the power of any other person in that behalf, be instituted or conducted by any immigration officer.

PART V

REGULATIONS

Regulations.

18. (1) The Minister may make regulations prescribing anything that may be prescribed under this Act, and generally for facilitating the implementation of this Act, including in particular, but without prejudice to the generality of the foregoing: (a) prescribing the places and times at or between which persons may enter or depart from Swaziland; (b) providing for the issue, periods of validity, terms and conditions of issue and cancellation of entry permits; (c) providing for classes of passes, and for the issue, periods of validity, terms and conditions of issue and cancellation thereof; (d) providing for passes in respect of wives and children to be endorsed on entry permits; (e) prescribing the making of deposits or giving of security by persons issued with entry permits or passes, and the circumstances in which deposits and securities may be forfeited; (f) prescribing the information to be furnished and the returns to be made by employers with respect to the persons employed or to be employed by them, including in particular information as to the citizenship, nationality description of employment, remuneration, experience and qualifications of such persons, and as to training schemes; (g) providing for the exemption from any of the provisions of this Act of any person or class of persons, and for the period of validity, terms and conditions and termination of any such exemption. (2) Without prejudice to any specific power conferred by this Act, regulations made under this Act may — (a) prescribe the particulars, information, proof or evidence to be furnished as to any question or matter arising under this Act, including any question or matter relevant to the issue or cancellation of any entry permit or pass or the forfeiture of any deposit or security; (b) prescribe, in respect of any action required or permitted to be taken under this Act, the place, time and manner of taking that action, the procedure to be followed, the fees to be paid and the forms to be used; (c) prescribe penalties for any offence thereunder not exceeding a fine of one thousand emalangeni or imprisonment for a term not exceeding one year or to both such fine and imprisonment. (3) Regulations made under this Act may make different provisions with respect to different cases or classes of case and for different purposes of this Act.

PART VI

TRANSITIONAL PROVISIONS AND REPEAL

Temporary validity of Permits issued under repealed law.

19. (1) Subject to section 20 of this Act, any residence permit, temporary residence permit or other permit granted or issued, or deemed to have been granted or issued, under the repealed law shall have effect according to its terms as if it has been issued under this Act in pursuance of a power conferred by this Act, and the provisions of this Act relating to entry into

185 and presence in Swaziland, and to engaging in Swaziland in any employment, occupation, trade, business or profession, shall be read and construed accordingly. (2) For the purpose of this section, a person who immediately before the commencement of this Act would have been entitled upon application under the repealed law to be granted a residence permit, shall be deemed to have been granted under the repealed law immediately before the commencement of this Act, a residence permit of the appropriate period of validity.

Notice by Minister to apply for permits.

20. (1) The Minister may at any time by notice in the Gazette require any employed person or class of employed persons whose presence in Swaziland would, but for section 19(1) of this Act, be unlawful, to apply to an immigration officer in the prescribed manner for an entry permit. (2) For the purposes of any notice under this section, a class of employed persons may be described as the persons employed by a specified employer or as the persons engaged in a specified occupation, profession, trade or business, who are, or who are deemed to be, the holders of a residence permit or temporary residence permit of any specified class or description. (3) After the expiration of a period of not less than three months to be specified by the Minister in a notice to be published under this section, section 19 of this Act shall cease to have effect in relation to any person to whom that notice relates, and any permit granted or issued, or deemed to have been granted or issued, to that person under the repealed law shall cease to have effect.

Issue of permits and passes after notice.

21. (1) Upon application being made by any person to whom a notice under section 20(1) of this Act applies, in the manner and within the time specified in that notice, an immigration officer may in his discretion issue to that person an entry permit of the appropriate class a provisional entry permit of that class or a pass. (2) A provisional entry permit of any class shall, for so long as it remains in force, have the same effect for the purposes of this Act as an entry permit of the same class. (3) A provisional entry permit shall remain in force for the period of time specified therein, but if no period is specified it shall remain in force until it is revoked by an immigration officer and shall continue in force thereafter for three months after the date on which notice of its revocation is served on the person to whom the permit was issued, or is published in the Gazette, whichever date is the earlier, and shall then expire.

Transitional provisions regarding re-entry.

22. Notwithstanding section 20 or section 23 of this Act, any person other than a prohibited immigrant, who would have been entitled to re-enter Swaziland by virtue of a residence permit or a temporary residence permit issued under the repealed law and who is subject to a notice issued by the Minister under section 20, shall, at any time within the period of six months following the publication of such notice, be entitled to enter Swaziland and remain in Swaziland for a period of ninety days, or such longer period as may be authorized in a pass to that effect issued to him under this Act: Provided that this section shall not apply to a person who has not at any time been resident in Swaziland since the 6th September 1968.

Repeal of Act No. 32 of 1964 and Act No. 62 of 1961.

23. The Immigration Act 1964 and the Deportation Act, 1961 are hereby repealed.

SCHEDULE (section 5)

CLASSES OF ENTRY PERMITS

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Class A: A person who is offered specific employment by a specific employer, who is qualified to undertake that employment, and whose engagement in that employment will be of benefit to Swaziland.

Class B: A person, being the holder of a dependant’s pass, who is offered specific employment by a specific employer, whose engagement in that employment will be of benefit to Swaziland.

Class C: A person who is a member of a missionary society approved by the Government of Swaziland and whose presence in Swaziland will be of benefit to Swaziland.

Class D: A person who intends to engage, whether alone or in partnership, in the business or agriculture or animal husbandry in Swaziland, and who — (a) has acquired, or has received all permissions that may be necessary in order to acquire, an interest in land of sufficient size and suitability of the purpose; and (b) has in his own right and at his full and free disposition sufficient capital and other resources for the purpose, and whose engagement in that business will be of benefit to Swaziland.

Class E: A person who intends to engage, whether alone or in partnership, in prospecting for minerals or mining in Swaziland, and who — (a) has obtained, or is assured of obtaining, any prospecting or mining right or License that may be necessary for the purpose; and (b) has in his own right and at his full and free disposition sufficient capital and other resources for the purpose and whose engagement in that prospecting or mining will be of benefit to Swaziland.

Class F: A person who intends to engage, whether alone or in partnership in a specific trade, business, or profession (other than a prescribed profession) in Swaziland, and who — (a) has obtained, or is assured of obtaining, any License, registration or other authority or permission that may be necessary for the purpose; and (b) has in his own right and at his full and free disposition sufficient capital and other resources for the purpose and whose engagement in that trade, business or profession will be to the benefit of Swaziland.

Class G: A person who intends to engage, whether alone or in partnership, in a specific manufacture in Swaziland, and — (a) has obtained, or is assured of obtaining, any License, registration or other authority or permission that may be necessary for the purpose; and (b) has in his own right and at his full and free disposition sufficient capital and other resources for the purpose, and whose engagement in that manufacture will be of benefit to Swaziland.

Class H: A member of a prescribed profession who intends to practise that profession, whether alone or in partnership, in Swaziland, and who — (a) possesses the prescribed qualifications; and

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(b) has in his own right and at his full and free disposition sufficient capital and other resources for the purpose, and whose practice of that profession will be of benefit to Swaziland.

Class I: A person who — (a) is not less than twenty-one years of age; and (b) has in his own right and at his full and free disposition an assured annual income of not less than the prescribed amount, being an income that is assured, and that is derived from sources other than any such employment, occupation, trade, business or profession as is referred to in the description of any of the classes specified in this Schedule, and being an income that either — (i) is derived from sources outside, and will be remitted to Swaziland; or (ii) is derived from property situated or a pension or annuity payable from sources in Swaziland; or (iii) will be derived from a sufficient investment capital to produce such assured income that will be brought into and invested in Swaziland; and (c) undertakes not to accept paid employment of any kind should he be granted an entry permit of this class, and whose presence in Swaziland will be of benefit to Swaziland.

Class J: A person who — (a) is not in employment, whether paid or unpaid, and who under the repealed Acts was issued with a Residence Permit, or who would, on application, have been entitled to the issue, of such permit; or (b) has been a resident of Swaziland for a continuous period of ten years; and — (i) has Khontaed according to Swazi Laws and Custom; and (ii) proves, to the satisfaction of the Chief Immigration Officer that he has applied for and has not been refused full Swazi Citizen status.

The Immigration Regulations, 1987 (Under section 18)

In exercise of the powers conferred by section 18 of the Immigration Act, 1982 the Minister for Interior and Immigration hereby makes the following Regulations:

Arrangement of Regulations

PART I

PRELIMINARY

Regulation 1. Citation and commencement 2. Interpretation

PART II

ENTRY AND DEPARTURE

3. Reports of entry 4. Reports of departure

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5. Places and times of entry and departure 6. Application for permits 7. Issue of permits 8. Cancellation of permits 9. Cessation of employment 10. Returns by employers 11. Validity of permits 12. Appeals 13. Prescribed professions

PART III

PASSES

14. Types of pass 15. Dependant’s pass 16. Validity of dependant’s pass 17. Student’s pass 18. Validity of student’s pass 19. Visitor’s pass 20. Validity of visitor’s pass 21. Transit pass 22. Validity of transit pass 23. Prohibited Immigrant’s pass 24. Appeals and Special pass

PART IV

PROHIBITED IMMIGRANTS AND RECOVERY OF EXPENSES

25. Notice to prohibited immigrant 26. Recovery expenses

PART V

SECURITY

27. Security in respect of permits, etc. 28. Bond in lieu of security 29. Covenant for group security 30. Forfeiture of security 31. Refund of security

PART VI

MISCELLANEOUS

32. Exemption from Fees 33. Payment of fees for permits, etc.

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34. Visas 35. Penalty 36. Places of entry into Swaziland by air

FIRST SCHEDULE

SECOND SCHEDULE

THIRD SCHEDULE

FOURTH SCHEDULE

FIFTH SCHEDULE

SIXTH SCHEDULE

PART I

PRELIMINARY

Citation and commencement.

1. These Regulations may be cited as the Immigration Regulations, 1987 and shall come into force on the 1st March, 1987.

Interpretation.

2. (1) In these Regulations except where the context otherwise requires —

“Act” means the Immigration Act, 1982;

“exempted person” means a person of a class or description of person who is exempted by the Minister under the Act from obtaining an entry permit or pass; from reporting entry into or departure from Swaziland;

“holder” in relation to a permit pass or passport, means the person to or in respect of whom the permit, pass or passport has been lawfully granted or issued and any other person to or in respect of whom the same applies in addition to the holder and in a like manner as to the holder, whether by reason of the terms thereof or by reason of any duly authorized endorsement or extension thereof. (2) For purposes of Regulations 3 and 4, any reference to an immigration officer shall also be construed as a reference to a police officer who is not below the rank of Sergeant. (Added L.N. 77/1982.)

PART II

ENTRY AND DEPARTURE

Reports of entry.

3. (1) Every person other than an exempted person, shall immediately on arrival in Swaziland, present himself in person and report his entry into Swaziland to the nearest Immigration officer and, if so required by an immigration officer, complete an entry declaration form in Form I in the First Scheduled hereto and deliver the same to an immigration officer. (2) Where any aircraft enters Swaziland, the person in charge of the aircraft or the agent thereof shall— (a) immediately on arrival provide the nearest immigration officer with a list in duplicate of the names of every person disembarking; and (b) prevent any person to whom sub-regulation (1) applies from leaving the precincts of the airport until authorized by an immigration officer. (3) Where any train or vehicle enters Swaziland, the person in charge or the agent thereof shall, if so required by an immigration officer, provide a list in duplicate of every person disembarking. (4) Where any aircraft enters Swaziland carrying any person from outside Swaziland whose destination is also outside Swaziland but who fails to continue his journey in such aircraft in circumstances which raise a reasonable 190 presumption that the person has remained in Swaziland, the person in charge or agent of such aircraft shall, as soon as possible, notify the nearest immigration officer of the failure of the person to continue his journey. (5) Any person who fails to comply with this regulation shall be guilty of an offence.

Reports of departure.

4. (1) Every person, other than an exempted person, shall, immediately before his departure from Swaziland, complete a departure declaration form in Form 2 in the First Schedule hereto and, if such person intends to leave Swaziland by aircraft, deliver the same to an immigration officer or person in charge or agent of such aircraft and, in any other case, deliver the same to an immigration officer. (2) Where any aircraft leaves Swaziland, the person in charge or agent thereof shall, before its departure— (a) provide the nearest immigration officer with a list in duplicate of the names of every person embarking thereon and leaving Swaziland; and (b) prevent the embarkation of any person who intends to leave Swaziland on such aircraft until such person has complied with sub-regulation (1). (3) Where any train or vehicle leaves or is about to leave Swaziland, the person in charge or agent thereof, shall, if so required by an immigration officer, provide a list in duplicate of the names of every person who leaves or is about to leave Swaziland by means of that train or vehicle. (4) Any person who fails to comply with this regulation shall be guilty of an offence.

Places and times of entry and departure.

5. Any person other than an exempted person, who enters or departs from, or attempts to enter or depart from Swaziland at any place or at any time other than a place or at a time specified in relation to such place in the Third Schedule hereto shall be guilty of an offence.

Application for permits.

6. (1) Every application for an entry permit shall be made to the Chief Immigration Officer in Form 3 in the First Schedule hereto. (2) Every entry permit issued shall be in Form 4 in the First Schedule hereto and shall be issued upon payment by applicant of the fee specified in the Second Schedule hereto.

Issue of permits.

7. (1) An entry permit issued in respect of a person not present in Swaziland at the time of issue shall cease to be valid if such person fails to enter Swaziland within six months from the date of issue thereof: Provided that an immigration officer may extend the validity of such entry permit for a period not exceeding six months. (2) For the purposes of class I entry permits the prescribed amounts of the assured annual income required of a person specified in the Fourth Schedule hereto shall be specified in that Schedule; and any class I entry permit issued shall only remain valid so long as the holder has in his own right and at his full and free disposition the appropriate assured annual income. (3) The immigration officer shall endorse particulars of any entry permit granted under these Regulations in the passport of the holder and where the holder has not arrived in Swaziland at the time the permit is issued, the endorsement shall be made within seven days after the holder has arrived in Swaziland.

Cancellation of permits.

8. The Chief Immigration Officer may vary the terms and conditions of an entry permit under the Act and may, with the written consent of the Minister, cancel any such permit and cause the cancellation to be endorsed on the holder’s passport.

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Cessation of employment.

9. (1) Where the holder of an entry permit of any of the classes A to C ceases to engage in the employment in respect of which the entry permit was issued, the employer specified in the entry permit shall report in writing such cessation to the Chief Immigration Officer within a period of seven days from the date in which the holder ceased to engage in the employment, and the holder shall on demand hand up his passport to the Chief Immigration Officer for endorsement. (2) Any person who fails to comply with sub-regulation (1) shall be guilty of an offence.

Returns by employers.

10. (1) The Chief Immigration Officer may require the employer of any person issued with an entry permit of class A, class B or class C to furnish a return in Form 19 in the First Schedule hereto of all persons who are in his employment or have been in his employment. (2) An employer of a holder of an entry permit of class A, class B or class C who fails to render such returns within thirty days of being so required, or who makes a return which he has reason to believe to be false in any material particular, shall be guilty of an offence.

Period of validity of permits.

11. The period of validity of any entry permit shall be at the discretion of the Chief Immigration Officer but may be renewed for further periods on the payment of the renewal fee specified in the Second Schedule hereto: Provided that an entry permit shall not be issued or renewed for a period exceeding five years from the date of issue.

Appeals.

12. (1) Any person wishing to appeal to the Minister under section 5(3) of the Act against a decision refusing an entry permit may submit an appeal in Form 5 in the First Schedule hereto accompanied by the appropriate fee specified in the Second Scheduled hereto, to the Minister within twenty one days upon receiving notification of such refusal. (2) A person appealing under sub-regulation (1) shall serve a copy of the appeal on the Chief Immigration Officer in the First Schedule hereto.

Prescribed professions.

13. For the purpose of class H entry permits the prescribed professions and prescribed qualifications shall be those specified in the Fifth Schedule hereto.

PART III

PASSES

Types of pass.

14. (1) The following types of passes may be issued under this Part— (a) a dependant’s pass; (b) a student’s pass; (c) a visitor’s pass; (d) a transit pass; (e) a prohibited immigrant’s pass; (f) a special pass. (2) Subject to these Regulations, the issue of any pass under this Part shall be at the discretion of the Chief Immigration Officer who may issue such pass on such terms and conditions as he may specify in it. (3) The Chief Immigration Officer may at any time cancel any pass issued under this Part and may vary any terms or condition thereof:

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Provided that a dependant’s pass shall not be cancelled without the prior approval of the Minister. (4) A person who wishes to apply for a pass under this Part shall pay the fees specified in the Second Schedule hereto in respect of that particular pass before the pass can be issued to him.

Dependant‘s pass.

15. (1) A person, who is lawfully in or entitled to enter Swaziland by virtue of — (a) being a citizen of Swaziland; or (b) having been issued with an entry permit; or (c) being an exempted person; or (d) being a person to whom section 4(3) of the Act applies, may make an application to the Chief Immigration Officer, in Form 6 in the First Schedule hereto for a dependant’s pass for any of his dependants. (2) The Chief Immigration Officer may only issue a dependant’s pass if he is satisfied that — (a) the person, in respect of whom the application is made, is dependant for his maintenance upon the person making the application for a dependant’s pass. (b) the dependant is by reason of age, disability or any incapacity unable to maintain himself adequately or for some other reason relies upon the applicant for his maintenance; and (c) the applicant has an income sufficient to enable him to maintain and continue to maintain such dependant. (3) All dependant’s passes shall be in Form 7 in the First Schedule hereto and where the applicant is the holder of an entry permit, the particulars of his wife and children (being dependants) may, at the discretion of an immigration officer, be endorsed on his entry permit.

Validity of dependant’s pass.

16. (1) A dependant’s pass shall, subject to the terms and conditions specified therein, entitle the dependant in respect of whom it is issued to enter Swaziland within the periods specified therein and to remain in Swaziland thereafter during the validity of the pass. (2) Where— (a) the dependant person is no longer dependant on the applicant; or (b) the applicant fails or is unable to maintain the dependant; or (c) the applicant leaves Swaziland in circumstances which raise a reasonable presumption that his absence will be other than temporary; or (d) the dependant engages in employment; or (e) the applicant dies, then with effect from thirty days of the date of the occurrence of any event set out in this sub-regulation, the dependant’s pass shall be deemed to have expired and to be of no validity or effect: Provided that nothing in this regulation shall render invalid a dependant’s pass issued in respect of a married woman who is living with her husband and who has been issued with an entry permit of class B and such dependant’s pass shall, subject to the provisions of the Act, be of full force and effect for the unexpired period of its validity notwithstanding that such married woman engages in any employment under the entry permit or has ceased to engage in such employment.

Student’s pass.

17. (1) A person seeking to enter or remain in Swaziland for the purposes of receiving education or training at an educational or training establishment within Swaziland by which he has been accepted as a student, or the parent or guardian on his behalf, may make an application accompanied by the prescribed fee to the Chief Immigration Officer, in Form 8 in the First Schedule hereto for a student’s pass.

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(2) The Chief Immigration Officer may only issue a student’s pass under this regulation if he is satisfied that the person seeking to enter or remain in Swaziland has been accepted as a student by the educational or training establishment referred to in sub-regulation (1). (3) A student’s pass shall be issued in Form 9 in the First Schedule hereto.

Validity of student’s pass.

18. (1) Subject to such terms and conditions as the Chief Immigration Officer may specify in the student’s pass, a student’s pass shall entitle the holder to enter Swaziland within the period specified and to remain in Swaziland for such period from the date of his entry as may be specified. (2) Where the holder of a student’s pass— (a) within a period of thirty days from the date of issue of such pass or from the date of the holder’s entry thereunder into Swaziland, which ever is the later, fails to enter as a student the educational or training establishment in respect of which the student pass was issued, the student’s pass shall be deemed to have expired and to be of no validity or effect; (b) having entered such educational or training establishment as a student, at any time leaves or ceases to be a student in that establishment, with effect from the expiration of thirty days following the date on which the holder leaves or ceases to be a student in such establishment, the student’s pass shall be deemed to have expired and to be of no validity or effect. (3) Any person, who being in charge of an educational or training establishment, allows a student who is required under this regulation to obtain a student’s pass to attend such establishment before that student is in possession of a student’s pass, shall be guilty of an offence.

Visitor’s pass.

19. (1) A person desiring to enter Swaziland for any other temporary purposes other than for the sole purpose of having a holiday, may make an application to the Chief Immigration Officer, in Form 10 in the First Schedule hereto for a visitor’s pass. (2) A person desiring to enter Swaziland for the sole purpose of having a holiday may be issued with a visitor’s pass by the Chief Immigration Officer which shall be endorsed in the holder’s passport.

Validity of visitor’s pass.

20. (1) Subject to such terms and conditions as the Chief Immigration Officer may specify in a visitor’s pass, a visitor’s pass shall entitle the holder to enter Swaziland within the period specified and to remain in Swaziland for such period, not exceeding six months from the date of his entry into Swaziland. (2) An immigration officer may extend the validity of a visitor’s pass for such further period as he may determine and may vary any term or condition thereof: Provided that the aggregate period of validity of a visitor’s pass shall in no case exceed one year from the date of the holder’s entry into Swaziland. (3) Except as provided in regulation 19(2), the holder of a visitor’s pass shall not accept or engage in any form of employment in Swaziland, whether paid or unpaid, without the written permission of the Chief Immigration Officer. (4) If a holder of a visitor’s pass referred in sub-regulation (3) accepts or engages in employment without the permission of the Chief Immigration Officer, he shall be guilty of an offence and his visitor’s pass shall, with effect from the date of such acceptance or engagement of employment be deemed to have expired and to be of no validity or effect.

Transit pass.

21. (1) A person who — (a) desires to enter Swaziland for the purpose of travelling to a destination outside Swaziland; and

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(b) is in possession of such valid documents as may be required to permit him to enter the country of destination; and (c) is otherwise qualified under the law in force in the country of destination to enter that country, may make an application to an immigration officer, in Form 10 in the First Schedule hereto for a transit pass. (2) A transit pass issued under this regulation shall be endorsed in the holder’s passport.

Validity of transit pass.

22. Subject to such terms and conditions as an immigration officer may specify in a transit pass, a transit pass shall entitle the holder to enter into and remain in Swaziland for the purpose of travelling to a destination outside Swaziland and shall be valid for such period, not exceeding seven days, as may be specified.

Prohibited immigrant’s pass.

23. (1) An application by a prohibited immigrant under section 3 of the Act for a prohibited immigrant’s pass shall be in Form 10 in the First Schedule hereto or in such other form as the Minister may require. (2) A prohibited immigrant’s pass shall be in Form 12 in the First Schedule hereto.

Appeals and special pass.

24. (1) A person who desires to enter or remain in Swaziland for a limited period for the purpose of conducting an appeal under regulation 12 or for applying for an entry permit or pass, or for any other purpose which the Chief Immigration Officer considers suitable, may make an application for a special pass to the Chief Immigration Officer, in Form 10 in the First Schedule hereto. (2) The Chief Immigration Officer may issue a special pass for such period, not exceeding three months, as he may specify in the pass. (3) A special pass shall be in Form 13 in the First Schedule hereto.

PART IV

PROHIBITED IMMIGRANTS AND RECOVERY OF EXPENSES

Notice to prohibited immigrant.

25. (1) An immigration officer or a police not below the rank of Sergeant may issue a notice, in Form 14 in the First Schedule hereto to a person who is a prohibited immigrant and who enters or attempts to enter Swaziland by any means. (2) A notice issued under sub-regulation (1) may require the prohibited immigrant — (a) to remain on the aircraft, train or vehicle by which he entered or attempted to enter Swaziland; (b) to leave Swaziland by such means and within such period as may be stated in the notice; (c) to comply with such other requirements as to place of residence, occupation, security or reporting to a specified authority as may be specified in the notice. (3) The Chief Immigration Officer may cancel any notice issued to a prohibited immigrant. (4) Where an immigration officer issues a notice to a prohibited immigrant under this regulation, he may issue a copy of such notice to the owner, person in charge or agent of the aircraft, train or vehicle on or from which the prohibited immigrant entered, or attempted to enter Swaziland, and thereafter the owner, person in charge or agent shall take reasonable steps to ensure that the prohibited immigrant complies with the terms of the notice served on him. (5) A prohibited immigrant to whom a notice under this regulation has been issued and who refuses or fails to comply with any requirements specified in the notice shall be guilty of an offence.

Recovery of expenses.

26. (1) On application by an immigration officer to a magistrate, the magistrate on being satisfied that any expenses have been incurred by Government in connection with the detention, maintenance, medical treatment or removal from 195

Swaziland of any person under the Act and of his wife, children and other dependants, may issue a warrant for the levy of the amount by distress and sale of any movable property belonging to such person. (2) A warrant issued under this regulation may be executed in the same manner as a warrant for the levy of the amount of a fine under section 304 of the Criminal Procedure and Evidence Act, 1938. (3) Sub-regulations (1) and (2) shall not be prejudicial to the liability of any surety in regard to the recovery of expenses under this regulation, nor shall the issue or execution of a warrant under this regulation be a condition precedent to the liability of a surety.

PART V

SECURITY

Security in respect of permits, etc.

27. (1) As a condition precedent to the issue of every entry permit or pass the Chief Immigration Officer may require a sum to be deposited with him in respect of each entry permit or pass sufficient for the repatriation of the person to whom it was issued and of his wife, children and other dependant, if any. (2) A deposit obtained under this regulation may, if necessary, be used to defray any expenses incurred or likely to be incurred by the Government in connection with the detention, maintenance, medical treatment or removal from Swaziland of the person in respect of whom the entry permit or pass was issued and of his wife, children and other dependants, if any. (3) A deposit obtained under this regulation if not used as specified in sub-regulation (2) shall be refunded to the depositor if the Chief Immigration Officer is satisfied that — (a) the person in respect of whom the deposit was made and his wife and children and other dependants, if any, have left or are leaving Swaziland permanently; or (b) the person in respect of whom the deposit was made and his wife, children and other dependants, if any, are all dead; or (c) retention of the deposit is for any other reason no longer necessary.

Bond in lieu of security.

28. (1) As security for a deposit under regulation 27, the Chief Immigration Officer may permit the applicant for an entry permit or pass or some other person on his behalf, to enter into a bond to provide security, with or without sureties, in a sum not exceeding one thousand emalangeni in respect of each entry permit or pass: Provided that the Chief Immigration Officer may, accept one composite bond in respect of any number of persons so long as the amount of the security provided by such bond does not exceed one thousand emalangeni in respect of each person. (2) Regulation 27(2) shall apply mutatis mutandis in respect of any security provided under this regulation. (3) A security bond under this regulation shall be in Form 15 in the First Schedule hereto and shall remain enforceable until such time as an immigration officer is satisfied that — (a) the person in respect of whom the bond was given and his wife, children and other dependants, if any, have left Swaziland permanently; or (b) the person in respect of whom the security was given and his wife, children and other dependants, if any, are all dead; or (c) retention of the bond is for any other reason no longer necessary.

Covenant for group security.

29. (1) Where any employer enters or intends to enter into contracts for the employment within Swaziland of persons in respect of whom applications will be made under the Act for the appropriate entry permits and in respect of whose wives, children and other dependants passes, the Chief Immigration Officer may, in lieu of a deposit or security bond in respect of

196 each employee and his wife, children and other dependants, if any, permit the employer to enter into a covenant to provide general security in respect of all such employees and their wives, children and other dependants, in a sum not exceeding one thousand emalangeni in respect of each person. (2) Regulation 27(2) shall apply mutatis mutandis in respect of any general security provided under this regulation. (3) A general security covenant under this regulation shall be in Form 16 in the First Schedule hereto.

Forfeiture of security.

30. (1) On application by an immigration officer, a magistrate, on being satisfied that the security given under any security bond or general security covenant under regulation 28 or 29 has been forfeited, may issue a warrant for the attachment and sale of the movable property belonging to any person or his estate, if such person died after the security was forfeited bound by such security to pay the sum specified in the bond or covenant. (2) A warrant issued under this regulation shall be enforceable by execution in the same manner as an order made under the Magistrate’s Court Act, 1938. (3) An order by a magistrate under this regulation shall be appealable to and may be revised by the High Court whose decision shall be final.

Refund of security.

31. (1) Where the Chief Immigration Officer is satisfied upon the production of a ticket or passage order in respect of a passage to a destination outside Swaziland, that any person will permanently leave Swaziland, he may stamp the ticket or passage order with a no-refund endorsement in Form 17 in the First Schedule hereto, and if a deposit has been made under regulation 27, refund such deposit or the remaining balance thereof, as the case may be. (2) Where any ticket or passage order has been stamped with a no-refund endorsement, a person holding such ticket or passage holder shall not without first obtaining the permission of the Chief Immigration Officer, cancel or vary the ticket or passage order, or transfer the same to any other person or pay or refund to any person any moneys in respect thereof. (3) A person who contravenes sub-regulation (2) shall be guilty of an offence and, in addition to any other penalty, may be ordered by the court by which he was convicted to pay the Chief Immigration Officer a sum not exceeding the price of the ticket or passage order in respect of which the offence was committed. (4) Any sum ordered to be paid to the Chief Immigration Officer under sub-regulation (3) shall be used for the purpose of defraying any expenses incurred in removing from Swaziland the person to whom the ticket or passage order was issued, and any unspent balance thereof shall be refunded to the convicted person. (5) Notwithstanding any other provision of this regulation, where the Chief Immigration Officer is satisfied, other than by the production of a ticket or passage order that any person will leave Swaziland permanently, and if a deposit has been made under regulation 27, he may refund such deposit or the remaining balance thereof as the case may be.

PART VI

MISCELLANEOUS

Exemption from fees.

32. Upon an application having been made to the Chief Immigration Officer and at his recommendation, the Minister may exempt any person or class of persons from any of the provisions of these Regulations requiring the payment of fees.

Payment of fees for permits, etc.

33. Where an immigration officer has given notification in writing that the issue of an entry permit or a pass has been approved, such approval shall cease to be valid if the requisite fee has not been paid within a period of ninety days from the date of such notification.

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Visas.

34. Subject to the Sixth Schedule, a visa to enter Swaziland shall not be required in respect of the person or classes of persons set out in that Schedule.

Penalty.

35. Any person convicted of an offence under these Regulations shall be liable to a fine not exceeding one thousand emalangeni or to a period of imprisonment not exceeding one year, or both.

Places of entry into Swaziland by air.

36. (1) A person shall not enter Swaziland by air — (a) from a country within the Customs Union Agreement of 1969 unless the aircraft lands at one of the aerodromes in Swaziland which are set out in the Third Schedule hereto; (b) from any other territory, unless the aircraft makes its first landing in Swaziland at a place appointed as a customs aerodrome by notice under the Customs Act, 1971 to be a customs aerodrome, which place shall be a port of entry for the purposes of this Act. (2) A person who contravenes sub-regulation (1) shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand emalangeni or a period of imprisonment not exceeding one year, or both.

FIRST SCHEDULE Form 1 (r.3)

ENTRY DECLARATION FORM For Official use only R.No...... Immigration Code ...... Date Stamp Security ......

SURNAME: MR/MRS/MISS (in block letters)

OTHER NAMES IN FULL (in block letters)

DATE AND COUNTRY OF BIRTH

PASSPORT NO. DATE AND PLACE OF ISSUE

NATIONALITY

COUNTRY OF ORIGINAL DEPARTURE

NO. OF DEPENDANTS TRAVELLING ON YOUR PASSPORT (see reverse) ADULTS: Female......

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CHILDREN: Male ...... Female ......

METHOD OF TRAVEL (Please check where applicable)

Air ...... Rail ...... Road ......

REASON FOR ENTRY (Please check where applicable 1. Swaziland citizen returning Yes ...... No.

2. Are you a Swaziland graduate student? Yes ...... No.

3. Non-Citizens of Swaziland (a) on holiday on Business Visitors ......

in Transit ......

(b) Returning from a visit outside Swaziland Others ......

Arriving to take up employment or study

Arriving to live with relatives

CONTACT ADDRESS IN SWAZILAND

DECLARATION: I hereby declare that the foregoing particulars are correct in every detail Date ...... Signature

If entering Swaziland other than on a visit please state full name of dependants, wife and children endorsed on your passport.

1. Mr/Mrs/Miss

2. Mr/Mrs/Miss......

3. Mr/Mrs/Miss......

4. Mr/Mrs/Miss......

Form 2 (r.4)

DEPARTURE DECLARATION FORM

Immigration Stamp

SURNAME: Mr/Mrs/Miss (in block letters)

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OTHER NAMES IN FULL (in block letters)

PASSPORT NO. DATE AND PLACE OF ISSUE

NATIONALITY

COUNTRY OF FINAL DESTINATION

NO. OF DEPENDANTS TRAVELLING ON YOUR PASSPORT (see reverse) ADULTS: Female...... CHILDREN: Male ...... Female

METHOD OF TRAVEL (Please check where applicable)

Air ...... Rail ...... Road......

NOT APPLICABLE TO VISITORS AND PERSONS IN TRANSIT (Please check where applicable) If so (a) Are you leaving Swaziland permanently?

Yes. …….. No. ……...

(b) Are you leaving Swaziland for further studies abroad?

Yes. ……... No. ……...

VISITORS AND PERSONS IN TRANSIT Are you leaving Swaziland after a (a) Holiday Visit?

(b) Business Visit?

How long have you stayed in Swaziland? Days

DECLARATION: I hereby declare that the foregoing particulars are correct in every detail. Date ...... Signature

If leaving Swaziland other than from a visit, please state full names of dependants, wife and children endorsed on your passport.

1. Mr/Mrs/Miss

2. Mr/Mrs/Miss

3. Mr/Mrs/Miss

4. Mr/Mrs/Miss

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Form 3 (r.6)

APPLICATION FOR OR RENEWAL OF AN ENTRY PERMIT

TO: THE CHIEF IMMIGRATION OFFICER, P.O. Box 372, MBABANE, SWAZILAND.

COPY TO: TRAINING AND LOCALIZATION DEPARTMENT, MBABANE, SWAZILAND

FOR OFFICIAL USE Permit class...... Issued for...... years/months Security...... Signature and date......

NOTE. Personal particulars are required for all entry permits, for classes A to C (inclusive) Photograph of person Part I should be completed and for classes D to J (inclusive) Part II should be completed for whom an entry permit is issued Not required cases of removal.

Personal particulars of the person requiring an entry permit. 1 Full Name: Mr/Mrs/Miss...... (Surnames) ...... (Forenames) 2 Present address . 3 Place of birth Date of birth . 4 Nationality No. of Passport . Date and place of issue of passport Expiry date of passport 5 Full name of wife . 6 Particulars of children, full names, sex, date and place of birth . (a) ...... (b) ...... (c) ...... (d) ...... (e) ......

7. Has the person requiring an entry permit (a) been convicted of any crime carrying a sentence of imprisonment? If so, give details......

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...... (b) been restricted from entry or deported from any country? If so, give details......

PART I (To be completed in respect of entry permits classes A to C (inclusive) I/We (name of employer) ...... of (postal address) being engaged in (state profession or business)

wish to employ the above named. 8. Place of employment (give full details)

9. Job title Job Category……………….

(As in Form 18 Part I) 10. Job description ...... (Not required if already described in Form 18 Part III) 11. Employees qualifications (give full details and attach copies of certificates, etc.) ...... (a) General Educational...... (b) Technical or Professional...... (c) Previous experience (in full): Name of employer Nature of Period so Employment employed (a) ...... (b) ...... (c) ...... (d) ...... (e) ...... (f) ...... (If more space required give details separately) 12. Period of employment offered...... 13. Annual salary offered ...... 14. Value of accommodation provided...... 15. Any other emoluments offered:

(a) Bonus ……………………………. (b) paid leave ………………………... (c) free medical treatment …………… (d) free passage……………………….

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(e) assisted school fees ………………. (f) any other emoluments……………..

16. (A) What steps have you taken to employ a Swazi citizen to fill this vacancy (give full details)...... (B) If you have a Swazi citizen training for this post, please indicate the following: (a) His name...... (b) Date training began...... (c) Date training will end ...... or (C) If you do not have a Swazi citizen training for this post, fill in below: (a) Minimum entry requirements for trainee ...... (b) Steps taken to engage a trainee ...... 17. This post is newly created/was previously occupied by a non-citizen/was previously occupied by a citizen (delete as appropriate) 18. If this application is approved will the proposed employee be instrumental in training Swazi citizens, if so, give details ...... I hereby certify that the foregoing particulars are correct in every detail.

Date ...... Signature ......

Designation ...... EXPLANATORY NOTES. (a) It is the Government policy that the economy of Swaziland should be manned by trained and competent citizens. Entry Permits are issued to non-citizens with skills not available at present on the Swaziland Labour Market, only on the understanding that effective training programmes are undertaken to produce trained citizens within a specified period. (b) Item (9) — Insert the designation by which the job is known within the firm. (c) Item (10) — Job Description. Describe what the individual holding this post is required to do. What staff does he supervise directly and what supervision does he himself receive? Estimate value of materials, equipment or money for which he is responsible. (d) Item (11) — State the educational, technical or professional qualifications of the applicant and his/her previous experience.

PART II (To be completed in respect of entry permits classes D to J inclusive)

I hereby apply for an entry permit under Class ...... 19. Proposed place of residence/business......

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...... 20. Details of profession, trade, business or manufacture in which you wish to engage and estimated number of persons to be employed...... 21. Qualifications to support application...... 22. Previous experience...... 23. Details of capital and income available, sources of income and present locality of capital ...... 24. Details of any License and/or registration required to qualify for the class of entry permit for which you have applied and proof that you have obtained or will be able to obtain such License and/or registration...... 25. In the case of an applicant who has Khontaed, details of application made for full Swazi Citizen status ...... I hereby certify the foregoing particulars are correct in every detail. Date ...... Signature ...... Undertaking to be given in respect of applicants (other than applicants who have Khontaed) for permits under classes I and J. I ...... hereby undertake, if I am issued with an entry permit, not to engage in any kind of Employment whether paid or unpaid without the prior written authority of the Chief Immigration Officer. Date ...... Signature ......

Form 4 (r.6.) Original No......

ENTRY PERMIT ...... of ...... is hereby authorised to enter and remain in Swaziland under the provisions of this Class ...... Entry Permit until (date)...... in accordance with the provisions of section 5 of the Immigration Act 1982 and Part II of the regulations for the purpose of ......

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...... The holder will be accompanied by the following dependants (Reg. 15(3): 1...... relationship to holder...... 2...... relationship to holder...... 3...... relationship to holder...... 4...... relationship to holder...... 5...... relationship to holder...... 6...... relationship to holder...... Date of issue...... Receipt Number......

...... CHIEF IMMIGRATION OFFICER.

NOTE. The holder must enter Swaziland within six months from the date of issue.

FORM 5 (r. 12) (Page 1)

APPEAL TO: MINISTER FOR INTERIOR AND IMMIGRATION P.O. Box 432, MBABANE, SWAZILAND.

COPY TO: THE CHIEF IMMIGRATION OFFICER, P.O. Box 372, MBABANE, SWAZILAND.

NAMES OF APPELLANT ADDRESS OF APPELLANT ...... SIR, The Chief Immigration Officer has advised me in his letter No. R ...... dated of his decision to refuse my application for an Entry Permit under Class ...... of the Schedule to the Immigration Act 1982, and I wish to appeal against this decision. My full particulars are as follows: (a) Full name...... (b) Type of pass or permit now held...... (c) Married, single or divorced...... Present address of wife ...... (Page 2) Number of Children: 205

(d) Males ...... Ages...... Marital status ...... Females...... Ages...... Marital status ...... Present address of children ...... (e) The documents produced by me in support of my application to The Chief Immigration Officer for a Class Entry Permit were:— ...... (Page 3)

PART II My grounds for appeal are as set out below, and are clearly numbered “1”, “2”, ‘3”, etc. 1. That ...... I declare that the foregoing particulars and statements are true. Signature of Appellant ...... Witness ...... I enclose with this appeal the fee of E25.00. (Page 4) FOR OFFICIAL USE...... MINISTER’S DECISION ......

Form 6 (r. 15) APPLICATION FOR A DEPENDANT’S PASS (One form of application is to be completed in respect of each dependant for whom a pass is required). TO: THE CHIEF IMMIGRATION OFFICER, P.O. Box 372, MBABANE, SWAZILAND.

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I hereby apply for a dependant’s pass in respect of (name of dependant) ......

APPLICANT’S PARTICULARS (All particulars to be in block capitals)

1. Full names: Mr/Mrs/Miss......

2. Address ......

3. Particulars of entry permit held ......

4. Relationship to the dependant ......

5. Particulars of other dependants, whether in Swaziland or elsewhere, including wife and children:

Full names Relationship Age Resident at ......

DEPENDANT’S PARTICULARS

6. (a) Full names of dependant: Mr/Mrs/Miss...... (Surname) ...... (Other names) (b) Present address ...... (c) Sex...... (d) Marital status ...... (e) Date and place of birth ...... (Proof of birth and/or marriage to be attached to this application)

7. Number, date and place of issue of passport ...... Nationality......

8. Particulars of any change of dependant’s name by deed poll, marriage of otherwise ...... I,...... the applicant, hereby declare that the foregoing particulars are correct in every detail.

Date ...... Signature of applicant......

NOTE: This application cannot be considered unless all the required particulars are completed in full.

Form 7 (r. 15)

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DEPENDANT’S PASS

...... of (address)...... age ……………… (in case of minors) is hereby permitted to enter Swaziland on or before……………………………………………………………………………………….. day of...... and to remain therein subject to the Immigration Regulations. Date of issue ...... CHIEF IMMIGRATION OFFICER Receipt number......

Form 8 (r. 17)

APPLICATION FOR A STUDENT’S PASS

TO: THE CHIEF IMMIGRATION OFFICER P.O. Box 372, MBABANE, SWAZILAND.

I...... of (address) ...... do hereby make application for the issue of a pass to enable (Full name)...... Aged...... at present residing at ...... to enter Swaziland for the purpose of entering the undermentioned educational or training establishment ...... The name of the student’s parent/guardian (where the student is under the age of eighteen years) is ……………………………………………………………………………… and his address is………………………………………………………………………………... …………………………………………………………………………………….. Student’s Passport number...... Date and place of issue ...... Nationality ...... Date of expiry...... Certificate to be completed by the Principal of the educational or training establishment.

I (full names)...... Principal of...... (Educational or training establishment) hereby certify that the admittance of ...... (full name proposed student) (a) has been accepted as a student in this establishment; (b) that I have adequate accommodation for this student;

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(c) that the issue of a student’s pass to the abovenamed applicant will not deprive a suitable citizen of Swaziland of accommodation at the establishment of which I am Principal.

Date ...... Signed......

Principal of...... (full name and address of educational or training establishment)

NOTE: This certificate must be signed by the Principal (for the time being) in person.

Form 9 (r. 17)

STUDENT’S PASS

R. NO...... …………………………………ORIGINAL Serial No...... the holder of this pass, is permitted to enter Swaziland on or before the...... day of...... and to remain therein for a period not exceeding...... from the date of issue hereof for the purpose of entering the following educational or training establishment as a student, namely ......

Date of issue ...... Receipt number...... CHIEF IMMIGRATION OFFICER SWAZILAND

Form 10 (rr. 19, 21 23 24)

APPLICATION FOR VIS1TOR’S/TRANSIT/PROHIBITED IMMIGRANT’S/SPECIAL PASS

TO: THE CHIEF IMMIGRATION OFFICER, P.O. Box 372 MBABANE, SWAZILAND. I...... hereby make application for the issue to me of a visitor’s pass/transit pass/prohibited immigrant’s pass/ special pass. I hereby declare that the following particulars are correct in every detail.

PARTICULARS OF THE PERSON TO WHOM THE PASS IS TO BE ISSUED 1. Full names: Mr/Mrs/Miss 2. Nationality...... 3. Date of birth ...... Place of birth ...... 4. Occupation ...... 5. Address in country of residence ...... 209

6. Passport or other travel document No. ……………………………………………………. Place and date of issue...... Date of Expiry ...... 7. Reasons for visiting Swaziland...... 8. Approximate date of arrival in Swaziland ...... 9. Approximate duration of stay in Swaziland ...... 10. Address in Swaziland ...... 11. If in Swaziland at the time of making this application, particulars of any permit or pass issued to the applicant ...... Date ...... Signature ......

NOTES (i) A cash deposit up to E1000 or security for a like amount may be required as a condition precedent to the issue of a pass. (ii) This application cannot be considered unless all the required particulars are completed in full. Delete whichever is inapplicable.

Form 11 (r. 1)

VISITOR’S PASS Mr/Mrs/Miss...... of...... the holder of this pass is entitled to enter Swaziland within ...... from the date of issue of this pass and to remain in Swaziland for...... from the date of entry into Swaziland for the purposes of...... Date of issue ...... CHIEF IMMIGRATION OFFICER SWAZILAND Note: — The holder of this pass may not engage in or take up any form of employment within Swaziland, whether paid or unpaid, other than such employment as may be authorised as a purpose for which this pass is issued without the written permission of the Chief Immigration Officer.

Form 12 (r. 23)

R. NO...... …………………………………ORIGINAL Serial No......

PROHIBITED IMMIGRANT’S PASS

210

...... of...... a prohibited immigrant, is hereby permitted to enter and remain in Swaziland for a period of ...... from the date of issue of this pass, for the purpose of ...... This pass may be cancelled at any time and is issued subject to the following conditions...... Date of issue...... CHIEF IMMIGRATION OFFICER SWAZILAND Receipt Number......

Form 13 (r. 23) Serial No......

SPECIAL PASS ...... of...... is hereby permitted to enter Swaziland and remain therein for a period of...... from the date of issue of this pass, for the purpose of...... ……. This pass may be cancelled at any time and is issued subject to the following conditions. Date of issue...... Receipt Number...... CHIEF IMMIGRATION OFFICER SWAZILAND

Form 14 (r. 25)

NOTICE TO PROHIBITED IMMIGRANT To: ...... you are a prohibited immigrant within the meaning of section 3 of the Immigration Act/l 982. YOU ARE HEREBY REQUIRED TO: (a) leave Swaziland within...... days by ......

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(b) remain on the aircraft, train or other vehicle by which you entered Swaziland, and to leave Swaziland on that aircraft, train or vehicle, (c) comply with the following requirements ...... Date ...... CHIEF IMMIGRATION OFFICER SWAZILAND (Delete if necessary)

NOTE: — The refusal or failure to comply with the requirements of this notice is an offence.

------

Form 15 (r. 28) SECURITY BOND

KNOW ALL MEN BY THESE PRESENTS THAT WE (1)* ...... of...... (hereinafter referred to as the obligor) and (2)...... of ...... and (3) ...... of ...... (hereinafter referred to as the sureties) are jointly and severally held and firmly bound unto the Government of Swaziland in the sum of:...... of good and lawful money of Swaziland to be paid to the said Government, for which payment well and truly to be made we bind ourselves and each and every one of us jointly and severally for and in the whole, our heirs, executors, and administrators and every one of them firmly by these presents. Dated this...... day of...... 19...... NOW THE ABOVE WRITTEN OBLIGATION is conditioned to be void if the said sureties or any of them shall on demand pay forthwith to the said Government any expenses which may, within ……………………………….from the date hereof, be incurred by the said Government in connection with the detention, maintenance, medical treatment or removal from Swaziland of + ...... SIGNED by the above bounden obligor in the presence of: ...... (Obligor) (Witness)...... (Address of Witness) ...... SIGNED by the above bounden first surety in the presence of: ...... (First Surety) (Witness)...... 212

(Address of Witness) ...... SIGNED by the above bounden second surety in the presence of: ...... (Second Surety) (Witness)...... (Address of Witness) ......

+ Name of immigrant * Names of sureties, if required

Form 16 (r. 29)

GENERAL SECURITY COVENANT

WHEREAS WE, the said ...... of...... (hereinafter referred to as the Employer) from time to time enter into contracts for the employment within Swaziland of persons (hereinafter referred to as the employees) who require entry permits:

AND WHEREAS the wives, children and other dependants of the said employees, from time to time, require dependant’s passes:

AND WHEREAS the Chief Immigration Officer, as a condition precedent to the issue of any entry permit or dependant’s pass, has required that we the said Employer shall give a general security in respect of all such employees and their wives, children and other dependant’s if any:

AND WHEREAS we the said Employer desire to give such a general security in order to enable entry permits and dependant’s passes to be issued:

NOW THESE PRESENTS WITNESS that in consideration of the issue from time to time of entry permits and dependants’ passes to the said employees, their wives, children and other dependants, we the said employers do hereby Covenant with the Government of Swazi- land that we the said Employer will on demand forthwith pay to the said Government any expenses incurred or likely to be incurred by the said Government in connection with the detention, maintenance, medical treatment or removal from Swaziland of each such employee, his wife, children or other dependants, but in no case exceeding one thousand emalangeni in respect of each such employee, wife, child or dependant.

IN WITNESS WHEREOF the said Employer has set his hand this ...... day of...... 19......

SIGNED by the said Employer ...... (Employer) in the presence of: (Witness)...... (Address of Witness...... 213

......

Form 17 (r. 31)

NO REFUND ENDORSEMENT This ticket or passage order shall not be cancelled, varied or transferred to another person, nor shall any moneys paid in respect hereof be refunded, without the permission of the Chief Immigration Officer.

Form 18 (r. 10)

RETURN — PART I TO: THE CHIEF IMMIGRATION OFFICER, P.O. Box 372, MBABANE, SWAZILAND.

COPY TO: TRAINING AND LOCALIZATION DEPARTMENT MBABANE SWAZILAND With reference to your letter reference ...... of...... (date) I forward herewith Form 18, Parts I, II and III in respect of each non-citizen job included in item 7 of Form 18 Part I. Date ...... Signature ...... Designation ...... 1. Employer (business name in full)...... 2. Branch (if any) ...... 3. Postal Address...... 4. Location of Business ...... 5. National Provident Fund number ...... 6. Person to contact in event of inquiries on this form:— (a) Name...... (b) Telephone No...... 7. Nature of Business...... 8. Employment as at (Date) ……………………………………………………………………….. 9. Owners and/or Directors of Business (other than public companies) NAME NATIONALITY COUNTRY OF RESIDENCE

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FORM 18

CITIZENS NOT-CITIZENS JOB CATEGORY A. Administrative, Executive and MANAGERIAL: 1. Directors and Top Level Administrators, General Managers 2. Senior Managers and Executives 3. Branch/Section Manager B. PROFESSIONAL/TECHNICAL: 1. Professional 2. Technician 3. Skilled Craftsmen 4. Semi-skilled Craftsmen C. CLERICAL: 1. Secretaries, Stenographers and Typists 2. Clerks 3. Book-keepers, Cashiers and Book-keeping Clerks 4. Office Machine Operators D. SALES STAFF: 1. Sales Representative 2. Shop Assistants E. SKILLED AND SEMI-SKILLED WAGE OR SALARY EARNERS NOT INCLUDED ABOVE F. UNSKILLED TOTAL ALL EMPLOYEES

215

EMPLOYMENT RETURN — PART II

AS AT DATE

NON-CITIZEN EMPLOYEES AND CITIZEN TRAINEES/COUNTERPARTS.

NAMES OF NON-CITIZENS NAMES AND PRESENT QUALIFICATIONS OF EMPLOYED CITIZENS IN TRAINING

Training Duration

EMPLOYMENT RETURN — PART II

AS AT……………………………………………………………………Date……………….

JOBS HELD BY NON-CITIZENS AND TRAINING SCHEMES FOR CITIZENS FOR SUCH JOBS

JOBS HELD BY NON-CITIZENS TRAINING SCHEMES FOR CITIZENS. Job Job Minimum Minimum Description of Title and Description Entry Entry Training Schemes Salary Requirements Requirements

216

(r.6)

SECOND SCHEDULE

(Replaced L.N.196/1996.)

FEES Fees (regulation 6)

(a) Passports/Travel Documents

The following new fees shall be payable by applicants in respect of — Repealed New Fees Swaziland Diplomatic Passport E10.00 E45.00 Swaziland International Passport E10.00 E30.00 Swaziland Travel Document E5.00 E15.00 Swaziland Emergency Travel Certificate E5.00 E30.00 Swaziland Emergency Passport E5.00 E50.00 Renewal of Swaziland Diplomatic Passport E5.00 E25.00 Renewal of Swaziland International Passport E5.00 E15.00 Renewal of Swaziland Travel Document E1.00 E10.00 Replacement of Lost Diplomatic Passport E10.00 E60.00 Replacement of Lost International Passport E10.00 E45.00 ” ” Travel Document E5.00 E10.00 ” ” ” Fully used Swd. Diplomatic Passport E10.00 E45.00 ” ” ” ” ” Swd. International Passport E10.00 E30.00 ” ” ” ” ” Swaziland Travel Document E5.00 E15.00 ” ” ” Spoiled Swd. Diplomatic Passport E10.00 E60.00 ” ” ” ” ” International Passport E10.00 E45.00 ” ” ” ” ” Travel Document E5.00 E20.00 ” (b) Permits

The following new fees shall be payable by applicants for permits in respect of New Fees Repealed New Fees (a) One month to Eleven -months E50.00 E150.00 (b) One year E100.00 E300.00 (c) Two years E200.00 E600.00 (d) Three years E300.00 E900.00 (e) Four years E400.00 E1200.00 (f) Five years E500.00 E1500.00 The same above fees shall be payable by applicants for renewals.

The following new fees shall be payable by applicants for passes in respect of — Repealed New Fees Dependant Pass E10.00 E100.00 Student Pass EI0.00 E100.00 Visitors Pass Two to Six Months E50.00 E100.00 Transit Free Free Special Pass per Three Months E50.00 E200.00 Prohibited Immigrant Pass E300.00 217

Re-Entry Pass Free Free Duplicate or Replacement of any Entry Permit or Pass Half the above Fee.

(d) Citizenship Repealed New Fees Form Cl E3.00 E100.00 Form C2 E2.00 E50.00 Form C3 E3.00 E100.00 Duplicate of any of the above - One half of Original Fee.

THIRD SCHEDULE

PLACES AND TIMES OF ARRIVAL INTO AND DEPARTURE FROM SWAZILAND

(a) For persons arriving or departing by air — (i) Matsapha Airport — at any time (ii) At any other airfield — between the hours of 7 a.m. and 6 p.m. (b) For persons arriving by rail — (i) Mlaula border post — at any time (ii) Lavumisa border post — at any time (c) For persons arriving by road — (i) Mashobeni/Matsamo between the hours of 0800 and 1600 (ii) Havelock/Bulembu ” ” 0800 ” 1600 (iii) Mananga ” ” ” 0800 ” 1600 (iv) Ngwenya/Oshoek ” ” ” 0700 ” 2200 (v) Sandlane/Nerston ” ” ” 0800 ” 1600 (vi) Ndlozana/Sicunusa ” ” ” 0800 ” 1600 (vii) Gege ” ” ” ” 0800 ” 1600 (viii) Mahamba ” ” ” ” 0700 ” 2200 (ix) Ntsalishe ” ” ” ” 0800 ” 1600 (x) Lavumisa ” ” ” ” 0700 ” 2200 (xi) Lundzi ” ” ” ” 0800 ” 1600 (xii) Lomahasha ” ” ” ” 0700 ” 2200

(r.7)

FOURTH SCHEDULE

PRESCRIBED AMOUNTS OF ASSURED ANNUAL INCOME

Status Assured Annual Income 1. For a person without a spouse or Dependants E5000 2. For a person with dependants E7000

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(r.13)

FIFTH SCHEDULE

PRESCRIBED PROFESSIONS AND QUALIFICATIONS

(1) (2) Profession Qualification

1. Medical profession Any person who would be entitled to registration as a medical practitioner under the Medical Practitioners and Dentists Act 1970.

2. Dentists Any person who would be entitled to registration as a dentist under the Medical Practitioners and Dentists Act 1970. 3. Legal Profession Any person qualified as a legal practitioner. 4. Surveyors: (a) Land surveyor Any person qualified to be licensed as a surveyor under the Land Survey Act 1961. (b) Surveyor Any person who is a Fellow or Professional Associate of the Royal Institution of Chartered Surveyors. (c) Estate Agent, Valuer and LandAny person who is a Fellow of the Royal Institute of Agent Chartered Surveyors. 5. Architects Any person who would be entitled to practise as an architect in Swaziland. 6. Pharmacists Any person who would be entitled to registration as a Pharmacist under the Pharmacy Act 1929 7. Veterinary Surgeons Any person who would be entitled to practise as a veterinary surgeon in Swaziland. 8. Engineers (a) Member or Associate Member of the Institution of Mining Engineers. (b) Member of Associate Member of the Institution of Civil Engineers. (c) Member or Associate Member of the Royal Institute of Naval Architects. (d) Member or Associate Member of the Institution of Municipal and Country Engineers. (e) Member or Associate Member of the Institution of Structural Engineers. (f) Member or Associate Member of the Institution of Mechanical Engineers. (g) Member or Associate Member of the Institution of Electrical Engineers. (h) Member or Associate Member of the Institution of Mining and Metallurgy. (i) Member or Associate Member of the Institution of Electronic and Radio Engineers. (j) Member or Associate Member of the Institution of Gas Engineers. (k) Associate Fellow or Associate of the Institution of Aeronautical Engineers or Royal Aeronautical Society. (l) Member or Associate Member of the Institution of Chemical Engineers. (m) Member or Associate Member of the Institution of Marine Engineers, or an equivalent qualification. 9. Nursing profession Any person who would be entitled to registration under the Nurses, Midwives and Health Visitors Act 1966.

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10. Physiotherapists Any person holding the qualification of the Chartered Society of Physiotherapy or an equivalent qualification. 11. Accountants Members of:— (a) the Institute of Chartered Accountants of Scotland; (b) the Institute of Chartered Accountants in England and Wales; (c) the Institute of Chartered Accountants in Ireland; (d) the Society of Incorporated Accountants; (e) the Association of Certified and Corporate Accountants; (f) the Societies of Chartered Accountants in South Africa; (g) the Institute of Chartered Accountants in India; (h) the Institute of Municipal Treasurers and Accountants; (i) the Institute of Cost and Works Accountants, or an equivalent qualification. 12. Chartered Secretaries (j) Fellows and Associates of the Chartered Institute of Secretaries. (k) Fellows and Associates of the Corporation of Certified Secretaries or an equivalent qualification.

SIXTH SCHEDULE (R.34) VISA ARRANGEMENTS (1) No visa is required for entry into Swaziland for the following classes of person: Holders of a valid Residence Permit issued under the repealed Act. Holders of a valid Entry Permit or Pass issued under the Immigration Act 1982. Commonwealth Citizens/and Citizens of the Republic of Ireland except Sri Lanka, Bangladesh, India and Mauritius. (2) No visa is required for entry into Swaziland for citizens of the following countries: Belgium Netherlands Denmark Norway Finland San Marino Greece Republic of South Africa Iceland Sweden Israel Uruguay Italy United States of America Luxembourg Portugal

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ARTWORK FOR PAGE 32

INDIGENOUS

WHITE

OTHER

BRITISH

SOUTH AFRICAN

PORTUGUESE

OTHER

TOTAL EMPLOYMENT

ARTWORK FOR PAGE 33

TRP OR RESIDENCE PERMIT NUMBER

PERMIT EXPIRY DATE

NAME IN FULL

PRESENT QUALIFICATION

BEGINNING DATE

ENDING DATE

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THE TRADEMARKS ACT Commentary

The Act is established to provide registration and protections of goods and services and for other purposes incidental thereto. The application of the Act as stated by Section 1 is to apply to all trademarks whether registered before or after the commencement of the Act. The interpretation clause refers in particular to the Paris Convention for the Protection of Industrial property of March 20, 1883 and whatever provisions there maybe to which Swaziland is a party and the international classification refers to Nice Agreement Concerning the International Classification of goods and services for the purpose of the Registration of Trademarks of June 15, 1957, which interestingly has maintained a number of trademark classifications, forty five to be exact since 1957.

Part II of the Act then deals with administration of the office, the registrar, functions and powers of the registrar, fees and powers of the minister. It is through the seal of the trademarks office that certificate and other documents are affixed confirming registration etc. The Register of Trademarks is probably one of the most important documents in the registrar’s office and it contains information as the names, addresses and trade or business descriptions of the proprietors of the trademarks, the notifications of assignments and transmissions the names and addresses of all registered users, disclaimers, conditions, limitations and such other matters relating to the registered trademarks as may be prescribed.

It is through the seal of the registrar that any entry of which he is required or authorized by the Act to make is authorized. It is this seal when properly affixed on a document that is used as evidence without further proof being required or without the production of the original.

Section 8,9,10 and 11 refers to matters where the registrar exercises a discretion relating to the application for registration of a trademark or where a person has given notice of opposition to the registration of the trademark and certain issues therefore need to be heard before the registrar. The Act will provide later on the method of opposition, the forms necessary and the fees prescribed but as matters stand before Section 9 will then detail that the registrar shall be given evidence by affidavit but he may if he thinks fit take oral evidence on oath in lie of any addition to such evidence, he may even allow a witness to be cross-examined on his affidavit or oral evidence.

Section 10 also refers to persons taking affirmations and Section 11 provides that the registrar shall have the power to award any party such costs as he may consider considerable and to direct how and by which parties they are to be paid in the same way as a judgment of the High Court. It is worth noting however that the registrar can only deal with matters that are pending before him and he cannot for instance deal with unregistered trademark oppositions which fall under the common law and are therefore dealt with by the High Court under its exclusive and unlimited jurisdiction. A fees is payable for the registrar to perform any of these functions. It is he gazette which is commonly referred to as the trademarks gazette and not the ordinary gazette which contains the information relating the issues at the registrar’s offices for instance the advertising that must take place for any trademarks.

Section 11 gives the minister powers to make regulations.

Part III of the Act then deals with the acquisition and exclusive right of the trademark and it is probably one of the most important sections in the Act.

Section 15(1) states that the exclusive right to the use of a trademark as defined with Section 29 shall be acquired by registration in accordance with the Act and registration of a trademark shall only be granted to a person who has fulfilled the conditions of registration.

The classifications of registration are as stated by the nice classification of International Classification. If there is a dispute as to which class a trademark should actually go into the registrar shall in his discretion make the final decision which shall not be questioned by any Court of law.

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Part IV then talks about the requirement for registration and the trademark must be of a distinctive character before it can be registered and in it deemed to be of a distinctive character if it is capable in relation to the goods or services in which it is proposed to be registered able to be distinguished as opposed to other trademarks and determining the distinctiveness the registrar will want to know if the trademark is capable of distinguishing the goods and if by reason of the trademark will in fact be capable of distinguishing the goods or the services. If a trademark in terms of Section 18 is registered without limitation of colour it shall be deemed to registerable of all colours.

Section 19 states that a disclaimer can be made on a trademark if the mark is of a non-distinctive character and in so doing the registrar may require that the applicant or the proprietor disclaim any right to the exclusive use of any part of that mark or to the part that he does not believe is distinctive or is common to that kind of business. The applicant or proprietor will make the disclaimer as considered necessary for the purposes of defining his rights under the registration.

In section 20 there is a number of prohibitions to registration which include amongst others the fact the purported mark consists solely of the shape, configuration or colour of the goods or the containers thereof or the trademark is so identical to imitate the armorial bearings, flags and other emblems, initials, names or abbreviations or initials or official signs or hallmark of any State or any intergovernmental international organization or any organization created by international convention unless authorized by the competent authority of that state. It is worth noting however that there is no particular prohibition to registration as relating to Swaziland in particular although one could read section 10 (c) to include under any state the state of Swaziland. This is worth noting because the companies Act for instance will clearly state that the emblems or the armorial markings of the King or the Government of Swaziland shall not be capable of registration as a company.

Part V then deals with the application procedure, examination, opposition and registration of trademarks and starts with the application of the trademarks which must be done I a form as prescribed in the Act which must have the details upon which the registration is applied for.

Section 22 of the Act grants priority under the convention which has been referred to above. The priority under the convention simply means that a person or through his legal representative can apply and claim the benefit of an earlier application and its registration in Swaziland shall be deemed to be the same date as the date for the application in another country which is a party to the convention.

Section 23 then makes it clear that information will be required with regards to foreign application which information may include a copy of the trademark that is registered and these documents required by the registrar are used solely for the purposes of facilitating the examination of the application and not of the registration entered in the registrar in the bases of that application.

Section 24 provides that persons can be joint proprietors of a trademark. Section 25 states that if the proprietor of a trademark wants to register that trademark separately and from the rest of the trademark or the whole of the trademark, he can apply to have this marks or marks registered separately. And each such separate registration shall be dealt with as an independent trademark. When a mark has been filed for application and the fees have been paid in accordance with Section 26 the mark shall then be examined and this Act ensures that it conforms with the former requirements of the Act and whether it is registerable in terms of Part IV and the regulations. The registrar may object to the application and if he does so he shall notify the applicant in writing objections and allow him time as prescribed to submit his observations as to why he should not be deemed to have withdrawn his application.

Section 27 provides that any person may on the advertisement in the trademarks gazette give notice the registrar of opposition to the registration on the grounds that it does not satisfy the requirements of Section 4. In addition to those he may also give other grounds which for the purposes of opposition will included amongst other things the fact that the trademarks resembles in such a way as is likely to deceive or cause confusion an unregistered trademark used earlier in Swaziland by a third party in relation to the same goods or services or closely related goods or services. However in order for that to suffice as a reason that unregistered trademark must at the same time also be filed for registration. Another reason would be where that trademark resembles a business name or company name that is likely to confuse, deceive or cause confusion or where the trademark is filed by the agent

223 of the third party who is the proprietor of the trademark in another country without the authority of the proprietor unless the agent can justify the Action.

The objection must be given in writing in the prescribed form laid out in the regulations and shall include a statement of the grounds of opposition. The registrar will then send a copy of the notice to the applicant and within the prescribed time after receipt the applicant shall submit to the registrar in the prescribed form a counter statement of the grounds in which he relies for his application and if the applicant does not do that then he shall be deemed to have abandoned his application.

The registrar will send the counter statement by the applicant to the person giving notice of opposition. Where the counter statement has been given the registrar shall then cause a hearing if it is required and considering the evidence he shall decide whether and subject to what conditions or limitations if any, registration is to be permitted. If there is an appeal to the registrar’s decision in the High Court, after hearing the Registrar may permit the trademark to be registered or modified in a manner substantially affecting the identity thereof.

Section 28 deals with registration and states that when an application for registration has been accepted and after it has been advertised and no opposition has come or the opposition period has expired the registrar will unless the application has been accepted in error. On registration of the trademark a certificate of registration shall be prescribed in the form stated in the regulations and the registration shall be published in the gazette.

Part VI deals with the terms of registration and renewal and section 29 states that a trademark shall be for a period of ten years from the date on which registration is given. Before the ten year period expires the applicant must then submit a request for renewal of the trademark and must give a statement confirming that the goods have been used in Swaziland and during the three year period preceding the expiration of the last registration and that if there was special circumstances prevent the use of the trademark it was not by reason of the fact that there was an intention to abandon the trademark in respect of those goods and services.

Part VII Section 30 deals with unregistered trademarks and states that persons shall not be entitled to institute any proceedings to recover or prevent damages for infringement or unregistered trademarks. However this Act does not affect the rights of Action against any person for passing off of goods or services as the goods or services of another person, or the remedies in respect thereof. This section is clearly calculated to ensure that unregistered trademarks are not recognized under the trademarks Act and that should a person require the protections of the trademarks Act they must make sure that they register their mark.

Section 31 states the exclusive use to a trademark shall be given to the registered proprietor.

Section 32 has a continuation of section 31 in that exclusive use as referred to in Section 31 is then deemed to be infringed by persons who use a trademark which is identical or nearly resembling to likely to deceive or cause confusion in the cause of business a trademark which is registered. This section is extremely important in that it lays down what infringement shall be/consist of. The Act then continues in section 33 to give a right to continue using a trademark to a person who had an earlier unregistered trademark which now looks confusingly similar or resembles goods or services of a new registered trademark. The fact that the trademark is now registered shall not give grounds to the new registered owner to cause the former to desist from the usage of the trademark.

Section 33 then gives a very important and well known distinction with regards to the use of trademarks that a trademark shall not interfere with the bona fide use by any person of his name of the name of a geographically location of his or the name of his predecessors in business or by the use of any person of the description of a character or quality of his goods, now this would mean that it not be the quality of his goods would not be a description would be likely to be taken as importing references mentioned in Section 32(1)(a)(2). This section is taken directly from the world intellectual property organization draft legislation for trademarks in all countries and is very important and it could be argued that it is the same section that was used in the South African wine makers’ case when the French wine makers were opposing the South African wine makers’ usage of names. It is in the same section that there is a removal clause to the registration of a trademark by the registrar based on the fact that a trademark has not

224 been used for a period of three preceding the application by any person to the renewal of that trademark, however a proviso is given to say that non use can in certain cases be attributed solely to special circumstances and some of these special circumstances are then given in this section.

Section 36 and 37 allow the registered proprietor of a trademark to alter the registered trademark or to rectify a registered trademark for various reasons. If fraud is the reason for the registration, renewal, assignment or transmission of a trademark the registrar may rectify the trademark as he may determine. The registrar can expunge or vary the registration of a trademark on the grounds of any contravention or failure to observe condition on the registrar. The register can also correct the registrar on application made to him for any reason stated in Section 40.

Part VIII deals with assignments and transmission and states a number of ways in which a trademark can be assigned or transmitted.

Part IX then deals with registered users as to those who will be and how a trademark can be used by a registered and if that person is allowed to register a trademark as a registered use. It states that there must be a license contract valid in the in the absence of relations or stipulations between the registered proprietor of the trademark and the proposed registered user.

Part X deals with appeal and legal proceedings and states that a person who is aggrieved by the decision of the registrar may appeal to the High Court and the High Court Rules shall apply to such appeal. Where the matter to be decided by the registrar under the Act appears to the registrar to involve a point of law or to be of unusual importance or complexity he may by giving notice to the persons concerned refer the matter to the High Court for decision and the Act provides that the fact that a trademark has been registered shall be prima facie proof that a person has valid and original registration of the trademark. The fact that the Act states that the court can satisfy the validity of the registration of the trademark. The registrar in any legal proceedings involving trademarks in Swaziland has the right to appear before the court and be heard and shall appear also if directed by the court. The court also has the power to review the decision of the registrar relating to entry and question or the correction sought to be made. The court shall have the same powers as those conferred to the registrar in this Act.

Part XI states offences and penalties that apply to fortification of entries in the registrar or false representation of a trademark as registered. It also deals with any officer or the registrar who is deceived by any persons and specifies the penalties.

Part XII states existing trademarks as of the Act shall be reclassified so that they are in inconformity with the International classification.

The Act provides in section 60 that the validity of original registration of any trademark existing at the commencement of the Act shall continue and be determined with in accordance with the law in force the date of registration. All pending registrations shall be dealt with as if they were under this Act and section 62 then puts into place agents who shall be the persons who deal with trademarks on behalf of an applicant, proprietor, registered user or any person.

The patents designs and trademarks Act of 1936 has ceased to apply to trademarks as from section 63.

After the trademarks regulation of 1989 then came into being which deal with the regulations concerning the Act, the various portions of the Act. It deals with the forms, hours of the office of the registrar, content and the keeping of the registrar.

Part III, IV, V and the rest thereafter deals with the Actual mechanics of bringing into force the Act and I shall not go into each of these except to say that each very specifically deal with each section of the Act.

Thereafter there are three schedules of the Act which are the fees, the forms to be used in trademarks either renewals, applications or any dealing with the registrar’s office in any form whatsoever and then schedule III gives the international classifications of goods and services as per the nice convention of 1956. 225

The Trade Marks Act 6 of 1981

Date of commencement: 1st July, 1994.

Arrangement of sections

PART I

PRELIMINARY 1. Short title, commencement and application. 2. Interpretation.

PART II

ADMINISTRATION, THE REGISTER, FUNCTIONS AND POWERS OF THE REGISTRAR, FEES AND POWERS OF THE MINISTER 3. Establishment of Trade Marks Office. 4. Officers. 5. Seal of Trade Marks Office. 6. Register of Trade Marks. 7. Evidence. 8. Hearing before exercise of discretion. 9. Proceedings before Registrar. 10. Oaths and affirmation. 11. Power to award costs. 12. Fees. 13. Publication in the Gazette. 14. Regulations.

PART III

ACQUISITION OF THE EXCLUSIVE RIGHT TO A TRADE MARK 15. Acquisition of the exclusive right. 16. Classification of registration.

PART IV

REQUIREMENTS FOR REGISTRATION 17. Distinctiveness. 18. Effect of limitation or absence of colour. 19. Disclaimer. 20. Prohibition of registration.

PART V

APPLICATION PROCEDURE, EXAMINATION, OPPOSITION AND REGISTRATION 21. Application for registration of trade mark. 22. Priority under the Convention. 23. Information as to foreign application. 24. Joint proprietors. 226

25. Registration of parts and of series of trade marks. 26. Examination. 27. Opposition. 28. Registration.

PART VI

DURATION AND RENEWAL OF REGISTRATION 29. Term of registration and renewal.

PART VII

EFFECT OF REGISTRATION, INFRINGEMENT AND UNLAWFUL ACTS 30. Unregistered trade mark. 31. Exclusive right. 32. Infringement. 33. Right to continue use. 34. Bona fide use of name or description and removal on grounds of non-use. 35. Power of Registrar to permit amendment of application, etc. 36. Alteration of registered trade mark. 37. Rectification. 38. Fraud in the registration, renewal, assignment or transmission. 39. Breach of condition. 40. Correction of the Register.

PART VIII

ASSIGNMENTS AND TRANSMISSIONS 41. Assignments and transmissions.

PART IX

REGISTERED USERS 42. Registered users. 43. Registration of registered user. 44. Guarantee of control. 45. Approval of License contracts. 46. Variation and cancellation. 47. Prohibition of assignments and sub-Licenses.

PART X

APPEALS AND LEGAL PROCEEDINGS 48. Appeals. 49. Reference to the High Court by Registrar. 50. Validity of registration. 51. Certification of validity. 52. Registrar’s right to appear. 53. Court’s power of review. 54. Court’s discretion.

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PART XI

OFFENCES & PENALTIES 55. Falsification of entries on Register. 56. Falsely representing a trade mark as registered. 57. Deceiving the Registrar or other officer. 58. Penalties.

PART XII

TRANSITIONAL AND OTHER PROVISIONS 59. Reclassification of existing trade marks. 60. Validity of existing registration. 61. Pending applications, proceedings, etc. 62. Registration of Trade Marks Agents. 63. Disapplication of Patents, Designs and Trade Marks Act, 1936.

An Act to provide for the registration and protection of trade marks for goods and services and for other purposes incidental thereto.

PART I

PRELIMINARY

Short title, commencement and application.

1. (1) This Act may be cited as the Trade Marks Act, 1981 and shall come into operation on such date as the Minister may, by Notice in the Gazette, appoint. (2) Save as otherwise provided this Act shall apply to all trade marks, whether registered before or after the commencement of this Act.

Interpretation.

2. In this Act, unless the context otherwise requires —

“assignment” means transfer by act of the parties concerned;

“Convention” means the Paris Convention for the Protection of Industrial Property of March 20, 1883, and any revisions thereof to which the Government of Swaziland is or may become a party;

“international classification” means the classification according to the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Trade Marks of June 15, 1957, as revised from time to time;

“limitations” means any limitations of the exclusive right to the use of a trade mark given by the registration of a person as proprietor thereof, including limitations of that right as to the mode of use, as to use in relation to goods or services to be sold or otherwise traded in any place in Swaziland or as to use in relation to goods or services to be exported to any market outside Swaziland;

“Minister” means the Minister responsible for Justice;

“pending trade mark” means a trade mark which is the subject of an application for registration;

“Register” means the Register of Trade Marks kept under the provisions of this Act;

“registered trade mark” means a trade mark which is actually on the Register;

“registered user” means a person who is registered as such under section 42;

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“Registrar” means the Registrar of Trade Marks appointed under section 4;

“Regulations” means Regulations made under section 14;

“trade mark” means any visible sign used or proposed to be used upon, in connection with or in relation to goods or services for the purpose of distinguishing in the course of trade or business the goods or services of a person from those of another;

“Trade Marks Office” means the Trade Marks Office established under section 3;

“transmission” means transfer by operation of law, devolution on the personal representative of a deceased person and any other mode of transfer not being an assignment;

“use of a trade mark” means, subject to section 29 and 30, use thereof in relation to goods or services in a printed or other visible representation;

“visible sign” means any sign which is capable of graphic reproduction including a word, name, brand, device, heading, label, ticket, signature, letter, number, relief, stamp, seal, vignette, emblem, or any combination thereof.

PART II

ADMINISTRATION, THE REGISTER, FUNCTIONS AND POWERS OF THE REGISTRAR, FEES AND POWERS OF THE MINISTER

Establishment of Trade Marks Office.

3. There shall be established under the direction of the Minister an office to be called the Trade Marks Office.

Officers. 4. The Minister shall appoint — (a) a Registrar of Trade Marks who shall exercise the powers and perform the duties assigned to the Registrar by this Act and who shall be responsible for its administration; (b) a Deputy Registrar of Trade Marks who shall, subject to the direction of the Registrar, have all the powers conferred by this Act on the Registrar; (c) such other officers as may be necessary for carrying out the provisions of this Act.

Seal of Trade Marks Office.

5. The Registrar of Trade Marks shall maintain a seal which shall be affixed to certificates and other documents as required by this Act.

6. (1) There shall be kept at the Trade Marks Office a record called the Register of Trade Marks wherein shall be entered all registered trade marks together with — (a) the names, addresses and trade or business descriptions of their proprietors; (b) notifications of assignments and transmissions; (c) the names and addresses of all registered users; (d) disclaimers, conditions and limitations; and (e) such other matters relating to registered trade marks as may be prescribed. (2) Subject to this Act, the Register shall, at all convenient times, be open to inspection by the public, and certified copies of any entry in the Register shall be given to any person requiring them on payment of the prescribed fee.

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Evidence. 7. (1) A certificate sealed and signed by the Registrar and certifying that any entry which he is required or authorised by or under this Act to make has or has not been made, or that any other act which he is so required or authorized to perform has or has not been done, shall be prima facie evidence of the matters contained therein. (2) A copy of any entry in the Register or of any document kept in the Trade Marks Office or of any trade mark or an extract from any such Register or document, certified by the Registrar and sealed, shall be admissible in evidence without further proof and without production of the original.

Hearing before exercise of discretion.

8. Where any discretionary or other power is given to the Registrar by this Act or the Regulations, he shall not exercise that power adversely to the applicant for registration, the registered proprietor of the trade mark in question or a person having given notice of opposition without (if duly requested so to do within the prescribed time) giving to the applicant or the registered proprietor or a person having given notice of opposition, as the case may be, an opportunity of being heard.

Proceedings before Registrar.

9. Subject to section 10, evidence in any proceedings before the Registrar under this Act shall be given by affidavit, but the Registrar may, if he thinks fit in any particular case, take oral evidence on oath in lieu of or in addition to such evidence and may allow any witness to be cross-examined on his affidavit or oral evidence.

Oaths and affirmations.

10. Any person who is required under this Act to take any oath or to swear an affidavit may, in lieu thereof, make an affirmation or declaration in accordance with the law relating to affirmations or declarations in Swaziland.

Power to award costs. 11. In all proceedings before the Registrar under this Act, the Registrar shall have the power to award to any party such costs as he may consider reasonable and to direct how and by which parties they are to be paid, and any such award may be enforced in the same manner as a judgement or order of the High Court.

Fees. 12. Where under this Act or the Regulations — (a) a fee is payable in respect of the performance of any act by the Registrar, the Registrar shall not perform that act until the fee has been paid; or (b) a fee is payable in respect of the doing of any act by any person other than the Registrar, the act shall be deemed not to have been done until the fee has been paid; or (c) a fee is payable in respect of the lodging of a document, the document shall be deemed not to have been lodged until the fee has been paid.

Publication in the Gazette.

13. Anything required to be published under this Act or the Regulations shall be published in the Gazette.

Regulations.

14. (1) The Minister may make Regulations, not inconsistent with this Act, prescribing anything which under this Act is to be prescribed and generally for the better carrying out of the objects and purposes of this Act or to give force or effect to its provisions or for its better administration. (2) Without prejudice to the generality of subsection (1), Regulations made by the Minister may provide for — (a) regulating the practice under this Act, including the service of documents; (b) making or requiring copies of trade marks and other documents;

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(c) regulating the publishing and selling or distributing of copies of trade marks and other documents; (d) the fees which shall be payable in respect of any application, registration or any other matter under this Act.

PART III

ACQUISITION OF THE EXCLUSIVE RIGHT TO A TRADE MARK

Acquisition of the exclusive right.

15. (1) The exclusive right to the use of a trade mark, as defined in section 29, shall be acquired by registration in accordance with this Act. (2) Registration of a trade mark shall only be granted to a person who has fulfilled the conditions for registration.

Classification of registration.

16. Trade marks shall be registered in respect of particular goods or services in one or more classes of the International Classification and any question arising as to the class within which any goods or services fall shall be determined by the Registrar, whose decision shall be final and shall not be questioned in any Court.

PART IV

REQUIREMENTS FOR REGISTRATION

Distinctiveness.

17. (1) In order for a trade mark to be registrable it shall be of a distinctive character. (2) For the purpose of subsection (1) a trade mark shall be deemed to be of a distinctive character if it is capable, in relation to the goods or services in respect of which it is registered or proposed to be registered, of distinguishing goods or services with which its proprietor is or may be connected in the course of trade or business from goods or services in the case of which no such connection subsists, either generally or, where the trade mark is registered or proposed to be registered subject to limitations in relation to use within the extent of the registration. (3) In determining under subsection (2) whether a trade mark is capable of distinguishing the goods or services in question regard shall be had to the extent to which — (a) the trade mark is inherently capable of distinguishing such goods or services; (b) by reason of the use of the trade mark or of any other circumstances, the trade mark is, in fact, capable of distinguishing such goods or services.

Effect of limitation or absence of colour.

18. (1) A trade mark may be limited in whole or in part to one or more specified colours, and in any such case the fact that it is so limited shall be taken into consideration in deciding on the distinctive character of the trade mark. (2) If and so far as a trade mark is registered without limitation of colour, it shall be deemed to be registered for all colours.

Disclaimer.

19. If a trade mark contains matter common to the trade or otherwise of a non-distinctive character, in deciding whether the trade mark shall be registered or, if already registered, shall remain on the Register, it may be required as a condition of its being registered or remaining on the Register — (a) that the applicant or the proprietor shall disclaim any right to the exclusive use of any part of the trade mark, or to the exclusive use of all or any portion of such trade mark as aforesaid, to the exclusive use of which he is not entitled; or (b) that the applicant or the proprietor shall make such other disclaimer as is considered necessary for the purposes of defining his rights under the registration, provided that no disclaimer on the Register shall affect

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any rights of the proprietor of a trade mark except such as arise out of the registration of the trade mark in respect of which the disclaimer is made.

Prohibition of registration.

20. The following shall not be registrable — (a) trade marks the use of which would be contrary to law or morality or which would be likely to deceive or cause confusion as to the nature, geographical or other origin, manufacturing process, characteristics, or suitability for their purpose, of the goods or services concerned; (b) trade marks which consist solely of the shape, configuration or colour of the goods or the containers thereof; (c) trade marks which are identical with, or imitate the armorial bearings, flags and other emblems, initials, names or abbreviations or initials of the name, or official sign or hallmark of any State or of any intergovernmental international organization or of any organization created by an international convention, unless authorized by the competent authority of that State or international organization; (d) trade marks which constitute reproductions, in whole or in part, imitations translations or transcriptions, liable to create confusion, of trade marks or business or company names which are well known in Swaziland and belong to third parties.

PART V

APPLICATION PROCEDURE, EXAMINATION, OPPOSITION AND REGISTRATION

Application for registration of trade mark.

21. (1) Any person who or whose proposed registered user uses or proposes to use a trade mark may apply for the registration of the trade mark. (2) The application shall be made in writing to the Registrar as prescribed and shall include — (a) the name and address of the applicant; (b) the trade or business description of the applicant; (c) a reproduction of the trade mark; (d) the particular goods or services in respect of which registration of the trade mark is applied for, listed under the applicable classes of the International Classification; (e) an address for service within Swaziland, accompanied by a power of attorney in favour of a trade mark agent resident and practising in Swaziland; (f) a declaration that the applicant or his proposed registered user is using or proposes to use the trade mark in Swaziland.

Priority under the Convention.

22. (1) Any person who has applied for protection for any trade mark in a country to which the Convention applies or his legal representative or assignee (if such assignee is also so qualified), shall be entitled to claim the benefit of that earlier application and its registration date in Swaziland shall be deemed to be the same date as the date of the application in that other country, provided that the application for registration is made within six months from the date of the earlier application. (2) Where applications have been made for the registration of a trade mark in two or more countries to which the Convention applies the period of six months referred to in sub-section (1) shall be reckoned from the date on which the earlier or earliest of those application was made. (3) The application for the registration of a trade mark under this section shall be made in the same manner as is required in the case of an application under this Act subject to such other requirements as may be prescribed.

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Information as to foreign application.

23. (1) The applicant shall, at the request of the Registrar, furnish him within the prescribed time limit, with the date and number of any application for a trade mark or registration filed with a national industrial property office of another country or with a regional industrial property office having comparable requirements for registration (in this Act referred to as “a foreign application” or “a foreign registration”) relating to the same or essentially the same trade mark as that in the application field with the registrar. (2) The applicant shall, at the request of the Registrar, furnish him within the prescribed time limit with the following documents relating to one or more of the foreign applications or registrations referred to in subsection (1) — (a) a copy of any communication received by the applicant concerning the results of any search or examination carried out in respect of the foreign application; (b) a copy of the trade mark is registered; (c) a copy of any final decision rejecting the foreign application or refusing the registration requested in the foreign application or invalidating the foreign registration. (3) The documents furnished under this section shall be used solely for the purpose of facilitating the examination of the application filed with the Registrar or of the registration entered in the Register on the basis of that application. (4) The applicant shall have the right to submit comments on the documents furnished under this section.

Joint proprietors.

24. (1) Where the relations between two or more persons interested in a trade mark are such that no one of them is entitled as between himself and the other or others to use it except — (a) on behalf of both or all of them; or (b) in relation to an article or service with which both or all of them are connected in the course of trade or business; those persons may be registered as joint proprietors of the trade mark, and this Act shall have effect in relation to any rights to use of the trade mark vested in those persons as if those rights had been vested in a single person. (2) Subject to subsection (1), nothing in this Act shall be construed as authorizing the registration of a trade mark in respect of two or more persons who use a trade mark independently, or propose so to use it, as joint proprietors thereof.

Registration of parts and of series of trade marks.

25. (1) Where the proprietor of a trade mark claims to be entitled to the exclusive use of any part thereof separately, he may apply to register the whole and any such parts as separate trade marks and each separate trade mark shall satisfy all the conditions of an independent trade mark and shall, if registered and subject to section 34(3)(d), have the validity and effect of an independent trade mark. (2) Where a person claiming to be the proprietor of several trade marks, in respect of the same goods or services or closely related goods or services which, while resembling each other in the material particulars thereof, yet differ in respect of — (a) statements of the goods or services in relation to which they are respectively used or proposed to be used; or (b) statements of number, price, quality or names of places; or (c) other matter of a non-distinctive character which does not substantially affect the identity of the trade mark; or (d) colour; seeks to register those trade marks, they may be registered as a series in one registration.

Examination.

26. (1) Upon the filing of an application for registration and the payment of the prescribed fee, the Registrar shall cause an examination to be made as to —

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(a) the application’s conformity with the formal requirements of this Act and the Regulations; and (b) whether the trade mark is registrable in accordance with Part IV and the Regulations. (2) If upon the examination it appears that the applicant is entitled to the registration of his trade mark, the Registrar shall accept the application therefor and cause the trade mark to be advertised in the Gazette. (3) If upon the examination the Registrar objects to the application, he shall notify the applicant in writing of the objections and shall allow him time, as prescribed, to submit his observations or to request a hearing and if the applicant fails to pursue his application within the time allowed, he shall be deemed to have withdrawn his application. (4) Where the Registrar under subsection (3) notifies the applicant of his objections, he may, following representations by the applicant, accept the application subject to such amendments, modifications, conditions or limitations as he may think fit and if the applicant does not object to such conditional acceptance and amends his application accordingly, the Registrar shall cause the application to be advertised in the Gazette: Provided that the Registrar may cause an application to be advertised before acceptance in any case where he considers there are exceptional circumstances for so doing. (5) In the case of refusal of the application or conditional acceptance to which the applicant objects the Registrar shall, if required, advise the applicant in writing of the grounds of his decision including any documents relating thereto.

Opposition.

27. (1) Any person may, within the time prescribed from the date of the advertisement of an application, give notice to the Registrar of opposition to the registration, on the grounds that such application does not satisfy the requirements of Part IV. (2) In addition to the grounds referred to in subsection (1) any of the following shall also constitute grounds for the purpose of opposition to the registration of a trade mark — (a) where the trade mark resembles, in such a way as to be likely to deceive or cause confusion, an unregistered trade mark used earlier in Swaziland by a third party in relation to the same goods or services or closely related goods or services, provided that an application for the registration of the earlier used unregistered trade mark is filed at the same time as the notice of opposition; (b) where the trade mark resembles, in such a way as to be likely to deceive or cause confusion, a business or company name already used in Swaziland by a third party; (c) where the trade mark is filed by the agent or the representative of a third party who is the proprietor of the trade mark in another country, without the authorization of such proprietor, unless the agent or representative justifies his action. (3) The notice of opposition under this section shall be given in writing in the prescribed manner and shall include a statement of the grounds of opposition. (4) The Registrar shall send a copy of the notice to the applicant and, within the prescribed time after receipt thereof, the applicant shall submit to the Registrar, in the prescribed manner, a counter-statement of the grounds on which he relies for his application, and if the applicant does not do so, he shall be deemed to have abandoned his application. (5) If the applicant submits a counter-statement as required by subsection (4), the Registrar shall furnish a copy thereof to the person giving notice of opposition, and shall, after hearing the parties if so required, and considering the evidence, decide whether, and subject to what conditions or limitations, if any, registration is to be permitted. (6) On an appeal from any decision of the Registrar under this section the High Court may, after hearing the Registrar, permit the trade mark proposed to be registered to be modified in any manner not substantially affecting the identity thereof, but in any such case the trade mark as so modified shall be published in the Gazette before being registered.

Registration.

28. (1) When an application for registration of a trade mark has been accepted, and either — (a) the application has not been opposed and the time for notice of opposition has expired; or (b) the application has been opposed and the opposition has been decided in favour of the applicant; 234 the Registrar shall, unless the application has been accepted in error, register the trade mark, and the trade mark, when registered, shall be registered as of the date on which the application for registration was received, and that date shall be deemed, for the purposes of this Act, to be the date of registration: Provided that the provisions of this subsection relating to the date as on which a trade mark shall be registered and to the date to be deemed to be the date of registration shall as respects a trade mark registered under this Act with the benefit or priority under the Convention, have effect subject to the provisions of the Convention. (2) On the registration of a trade mark, the Registrar shall cause to be issued to the applicant a certificate of registration thereof in the prescribed form and every such registration shall be published in the Gazette.

PART VI

DURATION AND RENEWAL OF REGISTRATION

Term of registration and renewal.

29. (1) The registration of a trade mark shall be for a period of ten years from the date of registration but may be renewed from time to time in accordance with this section. (2) Subject to subsection (4), the Registrar shall, on application made by the registered proprietor of a trade mark in the prescribed manner and within the prescribed period, renew the registration of the trade mark for a period of ten years from the date of expiration of the original registration or of the last renewal of registration which date is referred to in this section as “the expiration of the last registration”, provided that the registered proprietor — (a) submits a statement confirming those goods or services covered by the registration in respect of which there has been bona fide use of the trade mark in Swaziland at any time during the three years immediately preceding the expiration of the last registration, together with a reproduction of the trade mark which has been used as aforesaid; or (b) established, to the satisfaction of the Registrar, that special circumstances prevented use of the trade mark in respect of any of the goods or services covered by the registration during the said period and confirms that there has been no intention to abandon the trade mark in respect of those goods or services. (3) For the purpose of subsection (2) — (a) the use of the whole of a registered trade mark shall be deemed to be equivalent to the use of any registered trade mark being a part thereof, registered in the name of the same proprietor by virtue of section 25(1); (b) where a trade mark has been used in relation to some, but not all, of the goods or services in respect of which it is registered, such use shall be deemed to be equivalent to the use of the trade mark in relation to all closely related goods or services in respect of which it is registered; (c) where a trade mark is applied to goods or services to be exported from Swaziland, such use shall be deemed to be equivalent to the use of the trade mark in relation to those goods or services in Swaziland; (d) the use of an associated registered trade mark, or of the trade mark with additions or alterations not substantially affecting its identity, may be accepted as an equivalent for the use of the trade mark. (4) The renewal referred to in subsection (2) shall be effected in respect of all goods or services covered by subsection (2)(a) and (b) and subsection (3)(b).

PART VII

EFFECT OF REGISTRATION, INFRINGEMENT AND UNLAWFUL ACTS

Unregistered trade mark.

30. No person shall be entitled to institute any proceedings to prevent, or to recover damages for, the infringement of an unregistered trade mark, but nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods or services of another person, or the remedies in respect thereof.

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Exclusive right.

31. Subject to this Act and any limitations or conditions entered in the Register, the registration of a trade mark shall, if valid, give or be deemed to have given the registered proprietor thereof the exclusive right to the use of the trade mark in relation to the goods or services in respect of which it is registered, including sale, importation and offer for sale or importation.

Infringement.

32. (1) The exclusive right referred to in section 31 shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a sign either — (a) identical with or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade or business, in relation to any goods or services in respect of which it is registered or in relation to any closely related goods or services and in such manner as to render the use of the sign likely to be taken either — (i) as being used as a trade mark or business or company name; or (ii) in a case in which the use is upon the goods or in physical relation thereto, or in relation to services, or in an advertising circular or other advertisement issued to the public, as importing a reference to some person having the right either as proprietor or as a registered user to use the trade mark, or to goods or services with which such person as aforesaid is connected in the course of trade or business; or (b) identical with or nearly resembling it in the course of trade or business in any manner likely to impair the distinctive character or acquired reputation of the trade mark. (2) The exclusive right referred to in section 31 shall, subject to subsection (3), also be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of permitted use, does any of the following acts in the course of trade in respect of goods purchased from the proprietor of the trade mark of a registered user — (a) applying the trade mark upon the goods after they have undergone alteration as respects their state or condition, get-up or packing; (b) where the trade mark is upon the goods, altering or obliterating it, whether wholly or partly; (c) where the trade mark is upon the goods, and there is also thereon other matter, being matter indicating a connection in the course of trade between the proprietor or registered user and the goods, removing or obliterating, whether wholly or partly, the trade mark unless that other matter is wholly removed or obliterated; (d) where the trade mark is upon the goods, applying any other trade mark to the goods or adding to the goods any other matter in writing that is likely to injure the acquired reputation of the trade mark. (3) The exclusive right given by registration under section 31 shall not be deemed to be infringed by the use of any such trade mark by any person — (a) in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark if, as to those goods or bulk of which they form a part, the proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it or has at any time expressly or impliedly consented to such use of the trade mark; or (b) in relation to goods adapted to form part of, or to be accessory to, other goods in relation to which the trade mark has been registered if the use of the trade mark is reasonably necessary in order to indicate that the goods are so adapted; or (c) in relation to goods which have been sold or offered for sale in Swaziland under the trade mark by the proprietor or any associated company of the proprietor, wherever incorporated, or with the proprietor’s

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consent, unless the condition of the goods is modified or impaired after they have been sold or offered for sale. (4) For the purpose of this section, reference to the use of a sign by a person not being the proprietor thereof or a registered user using by way of the permitted use shall be construed as including reference to the audible use of a sign.

Right to continue use.

33. Nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it, in relation to goods or services, in relation to which that person or his predecessor in title has continuously used that trade mark from a date anterior — (a) to the use of the first-mentioned trade mark in relation to those goods or services by the proprietor or his predecessor in title; or (b) to the registration of the first-mentioned trade mark in respect of those goods or services in the name of the proprietor or his predecessor in title; whichever is the earlier, or to object (on such use being proved) to that person being put on the Register for that identical or nearly resembling trade mark in respect of the same or closely related goods or services.

Bona fide use of name or description and removal on grounds of non-use.

34. (1) No registration of a trade mark shall interfere with — (a) the bona fide use by any person of his own name or of the name of the geographical location of his business, or of the name of any of his predecessors in business; or (b) the use by any person of any bona fide description of the character or quality of his goods or services, not being a description that would be likely to be taken as importing any such reference as is mentioned in section 32(1)(a)(ii). (2) A registered trade mark may be removed from the Register in respect of any of the goods or services in respect of which it is registered on application by any aggrieved person to the Registrar on the ground that up to one month prior to the filing of the application a continuous period of three years or longer has elapsed during which the registered proprietor has not used the trade mark in relation to those goods or services: Provided that failure to use the trade mark shall not be taken into account where — (a) it is attributable solely to special circumstances preventing use of the trade mark and not to any intention to abandon or not to use the trade mark; or (b) the non-use is within five years from the date of the registration determined in accordance with section 28(1). (3) For the purposes of subsection (2) — (a) the use of the whole of a registered trade mark shall be deemed to be equivalent to the use of any registered trade mark, being a part thereof, registered in the name of the same proprietor by virtue of section 25(1); (b) where a trade mark has been used in relation to some, but not all, of the goods or services in respect of which it is registered, such use shall be deemed to be equivalent to the use of the trade mark in relation to all closely related goods or services in respect of which it is registered; (c) where a trade mark is applied to goods or services to be exported from the country, such use shall be deemed to be equivalent to the use of the trade mark in relation to those goods or services in Swaziland; (d) the use of the trade mark with additions or alterations not substantially affecting its identity, may be accepted as an equivalent for the use of the trade mark.

Power of Registrar to permit amendment of application, etc.

35. (1) The Registrar may at any time before registration of a trade mark permit the applicant to amend his application or any document relating to the application or proceedings before him on such terms as to costs as he may determine.

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(2) If rights in a trade mark which is the subject of a pending application have been lawfully acquired by any person (including a body incorporate) other than the applicant on or after the date of application, the Registrar may, if satisfied that it is proper to do so and on payment of the prescribed fee, permit the applicant or such other person to amend the application by the substitution of the name of that other person as applicant for registration.

Alteration of registered trade mark.

36. (1) The registered proprietor of a trade mark may, on payment of the prescribed fee and in the prescribed manner, apply to the Registrar for leave to add to or alter the trade mark in any manner not substantially affecting the character thereof. (2) An application under this section shall be published in the Gazette and sections 26, 27 and 28 shall, mutatis mutandis, apply thereto.

Rectification.

37. Any person aggrieved by the non-insertion in or omission from the Register of an entry, or by any entry made in the Register without sufficient cause, or by any entry wrongly remaining on the Register, or by any error or defect in any entry in the Register, may apply to the Registrar, and the Registrar may make such order for making, expunging or varying the entry as he may determine.

Fraud in the registration, renewal, assignment or transmission.

38. In case of fraud in the registration, renewal, assignment or transmission of a registered trade mark, the Registrar may himself rectify the Register as he may determine.

Breach of condition.

39. The Registrar may make such order as he may think fit for expunging or varying the registration of a trade mark on the ground of any contravention of or failure to observe a condition entered on the Register in relation thereto.

Correction of the Register.

40. (1) The Registrar may, on application made in the prescribed manner by the registered proprietor — (a) correct any error in the name, address or description of the registered proprietor of a trade mark; (b) enter any change in the name, address or description of the person who is registered as proprietor of a trade mark; (c) cancel the entry of a trade mark in the Register; (d) strike out any goods or services from those in respect of which a trade mark is registered; (e) enter a disclaimer or memorandum relating to a trade mark which does not in any way extend the rights given by the existing registration of the trade mark. (2) The Registrar may, on application made in the prescribed manner by a registered user of a trade mark, correct any error or enter any change in the name, address or description of the registered user.

PART VIII

ASSIGNMENTS AND TRANSMISSIONS

Assignments and transmissions.

41. (1) Notwithstanding any law to the contrary, a pending trade mark or a registered trade mark shall be, and shall be deemed always to have been, assignable and transmissible in respect either of all the goods or services in respect of which it is applied for, registered, or was registered as the case may be, or of some, but not all, of those goods or services.

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(2) An assignment or transmission shall, be invalid if the assignment or transmission is likely to deceive or cause confusion, particularly in regard to the nature, origin, manufacturing process, characteristics, or suitability for their purpose, of the goods or services in relation to which the trade mark is intended to be used or is being used. (3) A person entitled by assignment or transmission to a pending trade mark or to a registered trade mark shall make application to the Registrar in the prescribed manner to register his title. (4) On receipt of an application referred to in subsection (3) in respect of a registered trade mark, the Registrar shall cause the particulars of the assignment or transmission to be entered in the Register and where the application is in respect of a pending trade mark, the particulars of the assignment or transmission shall be provisionally recorded, and, upon registration of the trade mark, shall be entered in the Register. (5) Assignments and transmissions of pending trade marks or of registered trade marks shall have no effect against third parties until the particulars thereof are entered in the Register. (6) Subject to this Act, the person for the time being entered in the Register as proprietor of a trade mark shall, subject to any rights appearing from the Register to be vested in any other person, have power to assign the trade mark and to give effectual receipts for any consideration for an assignment thereof.

PART IX

REGISTERED USERS

Registered users.

42. (1) Subject to section 43, 44 and 45, a person other than the proprietor of a registered trade mark may be registered as a registered user there of in respect of all or any of the goods or services in respect of which it is registered. (2) The use of a trade mark by a registered user thereof in relation to goods or services with which he is connected in the course of trade or business and in respect of which for the time being the trade mark remains registered, in compliance with any conditions or restrictions to which his registration is subject, shall be permitted use of the trade mark. (3) The permitted use of a trade mark shall be deemed to be used by the proprietor thereof, and shall be deemed not to be used by a person other than the proprietor. (4) Subject to any agreement subsisting between the parties, a registered user of a trade mark shall be entitled to request the proprietor thereof to take proceedings to prevent infringement thereof and, if the proprietor refuses or prevent infringement thereof and, if the proprietor refuses or neglects to do so within two months after being so requested the registered user may institute proceedings for infringement in his own name as if he were the proprietor, joining the proprietor as a defendant.

Registration of registered user.

43. (1) When it is proposed that a person be registered as a registered user of a trade mark an application therefor shall be made in the prescribed manner jointly by the registered proprietor and the proposed registered user who shall furnish the Registrar — (a) either with information that the proposed registered user is wholly controlled by the registered proprietor and that there is no other contractual relationship between the parties, or with a copy of the License contract between the parties; and (b) with a statement containing — (i) the identity of the registered trade mark; (ii) the name and address of the registered proprietor; (iii) the name and address of the proposed registered user; (iv) the goods or services in respect of which the registered user is proposed to be registered; (v) the restrictions on use, if any, by the proposed registered user; and (vi) the period of permitted use.

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(2) When the requirements of subsection (1) have been complied with and the Registrar, after considering the information furnished to him under that subsection, is satisfied that in all the circumstances the proposed use of the trade mark by the proposed registered user, subject to any conditions or restrictions which he thinks proper, would not be contrary to the public interest, he may register the proposed registered user as a registered user in respect of the goods or services as to which he is so satisfied.

Guarantee of control.

44. (1) A License contract shall be invalid in the absence of relations or stipulations between the registered proprietor of the trade mark and the proposed registered user, ensuring effective control by the registered proprietor of the quality of the goods or services of the proposed registered user in relation to which the trade mark is to be used. (2) In the absence of any provision to the contrary in the License contract, the grant of a License shall not prevent the registered proprietor from granting further Licenses to third parties or from using the trade mark himself. (3) The grant of an exclusive License shall prevent the registered proprietor from granting further Licenses to third parties and from using the trade mark himself. (4) In the absence of any provision to the contrary in the License contract, the registered user shall be entitled to use the trade mark during the whole duration of the registration, including renewals, in the entire geographical area of Swaziland, and in respect of all the goods or services for which the trade mark is registered, subject to any conditions of limitations entered in the Register.

Approval of License contracts.

45. The Minister may, taking into account the national needs of Swaziland, its economic development and any other relevant factors by order, provide that, on pain of invalidity, License contracts or any categories of them, and amendments or renewal of such contracts, shall require his approval.

Variation and cancellation.

46. Without prejudice to section 37, the registration of a person as a registered user — (a) may be varied by the Registrar on the joint application in writing in the prescribed manner of the registered proprietor and the registered user who shall, in amending a previous registration of the License contract, take into account the facts, procedures, Regulations, and any other requirements considered at the time of the previous registration of the License contract between the registered proprietor and then proposed registered user; (b) may be cancelled by the Registrar on the joint application in writing in the prescribed manner of the registered proprietor and the registered user.

Prohibition of assignments and sub-Licenses.

47. A License shall not be assignable to a third party and the registered user shall not be entitled to grant sub-Licenses.

PART X

APPEALS AND LEGAL PROCEEDINGS

Appeals.

48. Except as otherwise provided in this Act, a person aggrieved by the decision of the Registrar may appeal therefrom to the High Court (hereinafter referred to as “the Court”) and the High Court Rules shall apply to such appeal.

Reference to the High Court by Registrar.

49. When any matter to be decided by the Registrar under this Act appears to him to involve a point of law or to be of unusual importance or complexity, he may, after giving notice to the persons concerned, refer such matter to the High Court for a decision and shall thereafter, in relation to such matter, act in accordance with the decision of the Court. 240

Validity of registration.

50. In all legal proceedings relating to a registered trade mark (including applications under section 37), the fact that a person is registered as proprietor of the trade mark shall be prima facie evidence of the validity of the original registration of the mark and of all subsequent assignments and transmissions thereof.

Certification of validity.

51. In any legal proceedings in which the validity of the registration of a registered trade mark comes into question and is decided in favour of the proprietor of the trade mark the Court may certify to that effect.

Registrar’s right to appear.

52. (1) In any legal proceedings in which the relief sought includes alteration or rectification of the Register, the Registrar shall have the right to appear and be heard, and shall appear if so directed by the Court. (2) Unless otherwise directed by the Court, the Registrar, in lieu of appearing and being heard, may submit to the Court a statement in writing, signed by him, giving particulars of any proceedings before him in relation to the matter in issue or of the grounds of any decision given by him affecting it or of the practice of the Trade Marks Office in like cases or of such other matters relevant to the issues, and within his knowledge as Registrar, as he thinks fit, and the statement shall be deemed to form part of the evidence in the proceedings.

Court’s power of review.

53. The Court, in dealing with any question of the rectification of the Register (including all applications under section 37), shall have power to review any decision of the Registrar relating to the entry in question or the correction sought to be made.

Court’s discretion.

54. In any appeal from a decision of the Registrar to the Court, the Court shall have and exercise the same discretionary powers as under this Act are conferred upon the Registrar.

PART XI

OFFENCES AND PENALTIES

Falsification of entries on Register.

55. Any person who makes or causes to be made a false entry in the Register, or a writing falsely purporting to be a copy of an entry in the Register, or who produces or tenders in evidence any such writing, knowing the entry or writing to be false, shall be guilty of an offence.

Falsely representing a trade mark as registered.

56. (1) Any person shall be guilty of an offence if he knowingly makes a representation — (a) with respect to a trade mark not being a registered trade mark to the effect that it is a registered trade mark; (b) with respect to a part of a registered trade mark not being a part separately registered as a trade mark to the effect that it is so registered; (c) to the effect that a registered trade mark is registered in respect of any goods or services in respect of which it is not registered; or (d) to the effect that the registration of a trade mark gives an exclusive right to the use thereof in any circumstances in which, having regard to limitations entered in the Register, the registration does not give that right.

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(2) For the purposes of this section, the use in Swaziland in relation to a trade mark of the word “registered” or the symbol R, or of any other word or symbol referring, whether expressly or impliedly, to registration, shall be deemed to import a reference to a registration in the Register, except — (a) where that word or symbol is used in physical association with other words delineated in characters at least as large as those in which that word or symbol is delineated and indicating that the reference is to registration as a trade mark under the law of a country outside Swaziland being a country under the law of which the registration referred to is in fact in force; (b) where that word (being a word other than the word “registered”) or symbol is of itself such as to indicate that the reference is to such registration as is referred to in paragraph (a); or (c) where that word or symbol is used in relation to a trade mark registered as a trade mark under the law of a country outside Swaziland and in relation to goods or services to be exported to that country.

Deceiving the Registrar or other officer.

57. (1) Any person who — (a) for the purpose of deceiving the Registrar or any other officer of the Trade Marks Office in the performance of any function under this Act; or (b) for the purpose of procuring or influencing the doing or omission of anything in relation to this Act or any matter thereunder; makes or submits a false statement or representation, whether orally or in writing, knowing the same to be false, shall be guilty of an offence. (2) Any person who has made a statement or representation whether orally or in writing, not knowing it to be false, for the purpose or procuring or influencing the doing or omission of anything in relation to this Act or any matter thereunder, shall advise the Registrar forthwith of such falsity on becoming aware of it and if he fails to do so he shall be guilty of an offence.

Penalties.

58. Any person who is convicted of an offence under this Act shall be liable to a fine of E2000 or to imprisonment for six months or both.

PART XII

TRANSITIONAL AND OTHER PROVISIONS

Reclassification of existing trade marks.

59. Every trade mark which, on the commencement of this Act, is registered and classified under a classification other than the International Classification shall, upon application for the renewal thereof under section 29, be reclassified in accordance with the International Classification.

Validity of existing registration.

60. (1) Subject to this section, the validity of the original registration of any trade mark in the Register of Trade Marks existing at the commencement of this Act shall be determined in accordance with the law in force at the date of that registration, and any such trade mark shall retain its original date of registration but for all other purposes shall be deemed to have been registered under this Act. (2) No trade mark which had been registered at the commencement of this Act shall be removed from the Register on the ground that it was not registrable under the law in force at the date of its registration and the trade mark shall remain in force in Swaziland for the remainder of the unexpired period for which it was in force under the previous law. (3) Nothing in this Act shall be construed as invalidating the original registration of a trade mark which immediately before the commencement of this Act was validly registered.

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(4) Where a person is registered as a registered user of a trade mark on an application made within one year from the commencement of this Act, section 42(3) shall have effect in relation to any previous use (whether before or after the commencement of this Act) of the trade mark by that person, being use in relation to the goods or services in respect of which he is registered and, where he is registered subject to conditions or restrictions, being use such as to comply substantially therewith, as if that previous use had been permitted use.

Pending applications, proceedings, etc.

61. All applications for registration of trade marks and all other matters relating to trade marks which, on the commencement of this Act, are pending shall be governed by this Act and as if they had been made or arisen, as the case may be under this Act.

Registration of Trade Marks Agents.

62. (1) Any person desirous of acting as an agent for an applicant, proprietor, registered user or other person concerned in any proceeding or matter before or affecting the Registrar under this Act and the Regulations, shall apply to the Registrar in the prescribed manner to be entered on the Register of Trade Marks Agents to be kept by the Registrar. (2) The qualifications for a person to be entered on the Register of Trade Marks Agents shall be as prescribed.

Disapplication of Patents, Designs and Trade Marks Act, 1936.

63. The Patents, Designs and Trade Marks Act, 1936, shall, upon the commencement of this Act, cease to apply to trade marks.

The Trade Marks Regulations, 1989 (Under section 14)

Arrangement of sections

PART I

GENERAL REGULATIONS 1. Citation and commencement. 2. Interpretation. 3. Administrative instructions.

PART II

REGULATIONS CONCERNING PART II OF ACT 4. Fees. 5. Forms. 6. Classification. 7. Hours of the office and the Register. 8. Contents and keeping of the Register. 9. Registrar’s certificates and certified copies. 10. Documents size and format. 11. Signatures by partnerships, companies and associations. 12. Service. 13. Address. 14. Address for service. 243

15. Agency. 16. Extension of time. 17. Hearing.

PART III

REGULATIONS CONCERNING PART V OF THE ACT: APPLICATION FOR REGISTRATION OF TRADE MARKS 18. Application forms. 19. Name, address and nationality of applicant. 20. Reproduction of trade mark. 21. Transliteration and translation of trade mark. 22. Claim to priority under the Convention. 23. Declaration as to use of trade mark. 24. Filing date. 25. Serial number. 26. Notification. 27. Information as to foreign application or registration. 28. Application for registration of series of trade marks. 29. Objection to or conditional acceptance of application. 30. Refusal of application or conditional acceptance to which applicant objects. 31. Advertisement of trade mark upon acceptance of application. 32. Correction of errors in and amendment of application. 33. Notice of opposition to registration. 34. Counter-statement. 35. Evidence in support of opposition to registration. 36. Evidence in support of application for registration. 37. Evidence in reply by opponent. 38. Further evidence. 39. Exhibits. 40. Hearing of Arguments. 41. Security for costs. 42. Registration and entry in the Register. 43. Certificate of registration.

PART IV

REGULATIONS CONCERNING PART VI OF THE ACT 44. Renewal reminder. 45. Application to renew registration. 46. Notice of renewal. 47. Removal of trade mark from Register.

PART V

REGULATIONS CONCERNING PART VII OF THE ACT 48. Application to remove trade mark or to rectify Register entry.

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49. Procedure. 50. Application by registered proprietor or registered user to correct Register. 51. Application for addition to or alteration of trade mark.

PART VI

REGULATIONS CONCERNING PART VIII OF THE ACT 52. Application for entry of assignment or transmission. 53. Evidence of title. 54. Assignment or transmission in respect of only some of the goods or services. 55. Entry in the Register.

PART VII

REGULATIONS CONCERNING PART IX OF THE ACT 56. Application for registered user. 57. Entry of registered user and notification. 58. Application by registered proprietor and registered user to vary registered user entry. 59. Application by registered proprietor and registered user to cancel registered user entry. 60. Entry in the Register and notification. 61. Cancellation of entry or striking out of goods and services by Registrar.

PART VIII

REGULATIONS CONCERNING PART XII OF THE ACT 62. Reclassification. 63. Application to be entered in the Register of trade marks agents. 64. Qualifications for entry in the Register of trade marks agents. 65. Entry in the Register of Trade Marks Agents. SCHEDULE I: FEES SCHEDULE II: FORMS SCHEDULE III: INTERNATIONAL CLASSIFICATION

PART I

GENERAL REGULATIONS

Citation and commencement.

1. These Regulations may be cited as the Trade Marks Regulations, 1989 and shall come into operation on a date appointed by the Minister by notice in the Gazette.

Interpretation.

2. In the Regulations, unless the context otherwise requires —

“the Act” means the Trade Marks Act, 1981;

“agent” means an agent duly authorised to the satisfaction of the Registrar;

“the Office” means the Trade Marks Office established under section 3;

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“specification” means the designation of goods or services in respect of which a trade mark, or a registered user of a trade mark, is registered or proposed to be registered.

Administrative instructions.

3. (1) The Registrar may establish administrative instructions to deal with matters in respect of which these Regulations expressly refer and with details in respect of the application of these Regulations. (2) The administrative instructions and any modification thereof shall be published by notice in the Gazette. (3) The Registrar may by notice in the Gazette amend any administrative instructions made under this regulation.

PART II

REGULATIONS CONCERNING PART II OF THE ACT

Fees.

4. The fees to be paid under the Act or these Regulations shall be those prescribed in Schedule I hereto.

Forms.

5. The forms contained in Schedule II of these Regulations shall be used in all cases to which they are applicable and may be modified by the Registrar in a manner not inconsistent with the Act or these Regulations.

Classification.

6. The International Classification of goods and services which applies under the Act and these Regulations is reproduced in Schedule III.

Hours of the office and the Register.

7. The Trade Marks Office shall be open to the public for business and the Register shall, on payment of the prescribed fee, be open for inspection by the public during normal working hours namely, Monday — Friday: 8.30 a.m. — 3.30 p.m.

Contents and keeping of the Register.

8. In addition to those particulars listed in section 6(1) of the Act, the Register shall contain, in respect of each trade mark registered therein, the following particulars — (a) where relevant, the dates on which such particulars were received by the office; (b) the date and the number of the registration and the dates and numbers, if any, of all subsequent entries relating to that registration; (c) the class numbers and specifications of goods and services covered by the registration; (d) the name and address of any registered user and of any authorised agent, any address for service, and any changes therein; (e) the country or countries of nationality and of residence of the registered proprietor; (f) the reference to the date and number of the Gazette in which the registration and any subsequent changes and entries relating thereto were published.

Registrar’s certificates and certified copies.

9. Upon receipt of a request by any person on TM Form No. 25, together with the payment of the prescribed fee, the Registrar shall issue — (a) a certificate, sealed and signed by him, other than a certificate under section 28(2) of the Act, certifying that any entry or any other act which he is authorised or required by the Act or these Regulations to make or do has or has not been made or done;

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(b) a certified and sealed copy of a registered trade mark or of a document relating thereto or of any other entry or extract thereof.

Documents size and format.

10. Subject to any other directions that may be given by the Registrar, all applications, notices, statements, papers having representations affixed or other documents authorised or required by the Act or these Regulations to be submitted to the Trade Marks Office or to the Registrar shall be upon strong paper and on one side only of a size A4 or foolscap paper and shall have on the left-hand part a margin of not less than one inch and half.

Signatures by partnerships, companies and associations.

11. A document purporting to be signed for or on behalf of — (a) a partnership shall contain the names of all the partners in full and shall be signed by all the partners or by any qualified partner stating that he signs on behalf of the partnership, or by any other person who satisfies the Registrar that he is authorized to sign the document; (b) a body corporate shall be signed by a director or by the secretary or other principal officer of the body corporate, or by any other person who satisfies the Registrar that he is authorized to sign the document; and (c) an association of persons may be signed by any person who appears to the Registrar to be duly qualified.

Service.

12. (1) All applications. notices, statements, paper having representations affixed, or other documents authorized or required by the Act or the Regulations to be submitted to the Trade Marks Office or to the Registrar or to any other person may be sent through the post by a prepaid letter and any application or any document so sent shall be deemed to have been submitted at the time when the letter containing the same would be delivered in the ordinary course of post. (2) In proving sending under this regulation, it shall be sufficient to prove that the letter was properly addressed and sent by registered mail.

Address.

13. (1) Where any person is by the Act or these Regulations required to furnish the Registrar with an address, the address given shall in all cases be as full as possible for the purpose of enabling any person to easily find the place of trade or business of the person whose address is given. (2) The address shall include the name of the street and the number in the street or name of the premises, if any.

Address for service.

14. (1) Any applicant or other person requesting matters to be dealt with under the Act or these Regulations shall give to the Registrar an address for service within Swaziland, and such address may be treated as the actual address of that person for all purposes connected with the matter in question. (2) In any case in which no address for service is entered in the Register, the Registrar may treat any trade or business address in Swaziland of the registered proprietor or registered user as therein entered as his address for service for all purposes connected with the registration. (3) Any written communication addressed to a party or person at an address given by him, or treated by the Registrar as his address for service under this Regulation, shall be deemed to be properly addressed.

Agency.

15. (1) Subject to the requirement of an agent under section 21(2)(e) of the Act, and except as otherwise required by these Regulations, any application, request or notice which is required or permitted by the Act or these Regulations to be made or to be given to the Registrar, and all other communications between an applicant or a person making such request or giving such a notice and the Registrar and between the registered proprietor or a registered user of a trade mark and the Registrar or any other person, may be signed, made or given by or through an agent. 247

(2) Any applicant, person making a request or giving notice, registered proprietor or registered user may appoint an agent to act for him in any proceeding or matter before or affecting the Registrar under the Act or the Regulations by signing and sending to the Registrar an authority to that effect on TM Form No. 1, and in the case of such appointment, service upon the agent of any document relating to the proceeding or matter shall be deemed to be service upon the person so appointing him. (3) All communications to be made to a person who has appointed an agent under sub-regulation (2) in respect of the proceeding or matter may be addressed to the agent, and all attendances upon the Registrar relating thereto may be made by or through such agent, but in any partiuclar case in which he deems it necessary, the Registrar may require the personal signature or presence of an applicant, apponent, registered proprietor, registered user or other person. (4) The Registrar shall not recognise as an agent any person whose name is not entered on the Register of Trade Marks Agents kept under section 62 of the Act.

Extension of time.

16. (1) If in any particular case the Registrar is satisfied that the circumstances are such as to justify an extension of time for doing any act or taking any proceeding under the Act or these Regulations, he may extend the time upon such notice to the parties and upon such terms as he may direct and the extension may be granted through the time has expired for doing the act or taking the proceeding. (2) Whenever the last day fixed by the Act or by these Regulations for doing any act or taking any proceeding falls on a day when the Trade Marks Office is not open, the act may be done or the proceeding may be taken on the first following day on which the office is open.

Hearing.

17. (1) Before exercising adversely to any person indicated in section 8 any discretionary power given to the Registrar by the Act or these Regulations, the Registrar shall notify such person of the opportunity to be heard thereon, indicating a time limit, which shall not be less than one month, for filing a request for a hearing. (2) The request for a hearing shall be made on TM Form No. 13. (3) Upon receiving such request, the Registrar shall give the person applying at least two weeks’ notice of the date and time of the hearing.

PART III

REGULATIONS CONCERNING PART V OF THE ACT: APPLICATION FOR REGISTRATION OF TRADE MARKS

Application form.

18. (1) An application to the Registrar for the registration of a trade mark shall be made in writing, in the English language, on TM Form No. 2, together with the payment of the prescribed fee, and shall be signed by the applicant or his authorised agent. (2) Each application may be made for the registration of a trade mark in respect of goods or services in one or more classes of the International Classification.

Name, address and nationality of applicant.

19. (1) Names of natural persons shall be given in full, indicating forenames and surnames. (2) Names of legal entitles shall be indicated by their full official designation. (3) Addresses shall be as full as possible to ensure prompt postal delivery, and, in the case of an applicant having an address outside Swaziland, the address shall include the name of the country of his residence. (4) The applicant’s nationality shall be indicated by the name of the country of which he is a national, and legal entities shall indicate the country under whose laws they are constituted.

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Reproduction of trade mark.

20. (1) Every application for the registration of a trade mark shall contain a durable graphic reproduction of the mark in the space provided therefor on TM Form No. 2, and, where the reproduction exceeds such space in size, it shall be mounted upon hard and durable paper, and part of the mounting shall be affixed in the space aforesaid and the rest may be folded. (2) With all applications for the registration of a trade mark, three additional reproduction of the mark on separate TM Form No. 3 shall be submitted but the reproduction of the mark on the application and the additional reproduction shall be identical. (3) The additional reproduction referred to in sub-regulation (2) shall in all cases be noted with all such particulars as may from time to time be required by the Registrar, and such particulars shall, if required, be signed by the applicant or his authorised agent. (4) Sub-regulation (1) shall apply mutatis mutandis to sub-regulation (2) and (3). (5) If the Registrar considers any reproduction of a mark unsuitable, he may, at any time, require a suitable reproduction to be substituted. (6) Where a drawing or other reproduction cannot be given in the aforesaid manner a specimen or copy of the trade mark may be sent either of full size or on a reduced scale and in such a form as the Registrar may think most convenient.

Transliteration and translation of trade mark.

21. (1) Where a trade mark consists of, or contains, a word or words in characters other than Roman, the Application on TM Form No. 2 and the accompanying TM Form No. 3, shall be accompanied, unless the Registrar otherwise directs, by a sufficient transliteration and translation to the satisfaction of the Registrar of each of such words, stating the language to which each word belongs. (2) Where a trade mark consists of or contains one or more words in a language other than English, TM Form No. 2, and the accompanying TM Form No. 3, shall be accompanied, unless the Registrar otherwise directs, by a sufficient translation to the satisfaction of the Registrar of each of such words into English, stating the language to which each word belongs.

Claim to priority under the Convention.

22. (1) Every applicant who claims priority for his application under the provisions of section 22 of the Act shall indicate in his application on TM Form No. 2 — (a) that a priority claims is made under the Convention; (b) the date and the number of the earlier application in the Convention country; and (c) the name of the Convention country or, where the earlier application is a regional or international application, the notice with which it was filed. (2) The applicant shall furnish, together with his application or not later than three months after the filing date of the application, a copy of the earlier application certified as correct by the office with which it was filed. (3) Where the earlier application is not in English, the Registrar may require the applicant to furnish him, within four months of the filing date of the application, with a translation of the earlier application into English.

Declaration as to use of trade mark.

23. The declaration referred to in section 21(2)(f) of the Act shall be made on TM Form No. 2.

Filing date.

24. The Registrar shall accord as filing date of the application the date on which the following elements are received — (a) the name of the applicant; (b) an address to which communications can be directed; (c) a reproduction of the trade mark;

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(d) a specification of goods or services; (e) the required filing fee for at least one class of goods or services.

Serial number.

25. Applications shall be given a serial number as received.

Notification.

26. The Registrar shall notify the applicant of the filing date and the serial number of the application.

Information as to foreign application or registration.

27. The applicant shall furnish the information requested under section 23(1) and (2) of the Act within three months from the date of the Registrar’s request.

Application for registration of series of trade marks.

28. Where application is made for the registration of a series of trade marks under section 25(2) of the Act, a durable graphic reproduction of each trade mark of the series shall be submitted, as provided in Regulation 20 on a TM Form No. 2 and on the accompanying TM Form(s) No. 3.

Objection to or conditional acceptance of application.

29. (1) If, upon examination, the Registrar objects to the application for registration of a trade mark, he shall notify the applicant in writing of his objections with all the relevant details and invite the applicant to amend the application, to submit his observations in writing or to apply for a hearing within two months from the date of the notification: If the applicant does not comply with the invitation within the set period, he shall be deemed to have withdrawn his application. (2) If the Registrar decides to accept the application subject to any amendments, modifications, conditions, disclaimers or limitations, he shall communicate such decision to the applicant in writing: If the applicant — (a) objects to such amendments, modifications, conditions, disclaimers or limitations, he shall, within two months from the date of the communication, apply for a hearing or submit his observations in writing; (b) does not object to such amendments, modifications, conditions, disclaimers or limitations he shall, within two months from the date of the communication, notify the Registrar in writing and amend his application accordingly; (c) does not respond in one way or the other within two months of the date of the communication, he shall be deemed to have withdrawn his application.

Refusal of application or conditional acceptance to which applicant objects.

30. If, after a hearing or after consideration of the applicant’s amendments or observations in writing, the Registrar refuses the application or accepts it subject to any amendments, modifications, conditions, disclaimers or limitations to which the applicant objects, he shall communicate his decision to the applicant in writing: Provided that within one month from the date of such communication, the applicant may, on TM Form No. 4, together with the payment of the prescribed fee, request the Registrar to state in writing the grounds of his decision and the material used by him in arriving at his decision.

Advertisement of trade marks upon acceptance of application.

31. (1) If the Registrar accepts an application for the registration of a trade mark or of a series of trade marks or accepts it subject to any conditions or limitations to which the applicant does not object, he shall promptly notify the applicant in writing and advertise the trade mark.

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(2) (a) For the purposes of the advertisement referred to in sub-regulation (1), the applicant may, at the appropriate time, supply or be required to supply a printed block (or more than one, if necessary) of the trade mark satisfactory to the Registrar, of such dimensions as may from time to time be approved or directed by the Registrar, or shall supply such information or other means of advertising the trade mark as may be required by the Registrar: If dissatisfied with the printing block supplied by the applicant or his agent, the Registrar may, before proceeding with the advertisement, require the applicant to supply a fresh block. (b) When an application relates to a series of trade marks differing from one another in respect of the particulars mentioned in section 25(2) of the Act, the applicant may be required to supply a printing block (or more than one, if necessary) satisfactory to the Registrar of any or of each of the trade marks constituting the series; or the Registrar may, if he thinks fit, insert with the advertisement of the application a statement of the manner in which the several trade marks differ from one another.

Correction of errors in and amendment of application.

32. The Registrar may, at any time, whether before or after acceptance, correct any error in or in connection with the application and may permit the applicant to correct or amend his application upon a request made on TM Form No. 5.

Notice of opposition to registration.

33. (1) The prescribed time for giving notice of opposition under section 7(1) of the Act shall be three months from the date of the advertisement of the application. (2) The notice shall be given on TM Form No. 6, in two copies together with the payment of the prescribed fee. (3) The Registrar shall forthwith send a copy of the notice to the applicant.

Counter statement.

34. (1) The counter-statement under section 27(4) of the Act shall be submitted, within two months from the receipt of the copy of the notice of opposition, on TM Form No. 7, in two copies, together with the payment of the prescribed fee. (2) The Registrar shall forthwith send a copy of the counter-statement to the opponent.

Evidence in support of opposition to registration.

35. (1) Within two months from the receipt of the copy of the counter-statement, the opponent shall file with the Registrar, in two copies, evidence by way of statutory declaration in support of his opposition, and the Registrar shall forthwith send a copy of the said evidence to the applicant. (2) If the opponnent does not file evidence within the period specified in this Regulation, he shall, unless the Registrar otherwise directs, be deemed to have abandoned his opposition.

Evidence in support of application for registration.

36. If the opponent files evidence, the applicant shall within two months from the receipt of the copy of the evidence, file with the Registrar, in two copies, evidence by way of statutory declaration in support of his application, and the Registrar shall forthwith send a copy of the said evidence to the opponent.

Evidence in reply by opponent.

37. Within two months from the receipt of the copy of the applicant’s evidence, the opponent may file with the Registrar, in two copies, evidence by way of statutory declaration, strictly confined to matters in reply, and the Registrar shall forthwith send a copy of the said evidence to the applicant.

Further evidence.

38. No further evidence shall be filed on either side, but, in any proceedings before the Registrar, he may at any time give leave to either the applicant or the apponent to file any evidence on such terms with regard to costs or otherwise as he may think fit. 251

Exhibit.

39. (1) Where there are exhibits to a declaration filed in an opposition, a copy of each exhibit shall be sent to the other party on his request and at his expense. (2) If any such copy cannot be furnished conveniently, the original shall be filed with the Registrar in order that it may be open to inspection. (3) The original exhibit shall be produced at the hearing, unless the Registrar otherwise directs.

Hearing of arguments.

40. (1) Upon completion of the evidence, the Registrar shall give at least two month’s notice to the parties of the date when he will hear the arguments in the case. (2) (a) A party who receives such notice but does not, within one month from the date thereof, notify the Registrar on TM Form No. 8, in two copies, together with the payment of the prescribed fee, of his intention to appear may be treated as not desiring to be heard, and the Registrar may act accordingly. (b) The Registrar shall send forthwith to the other party a copy of the said notice. (3) (a) If the Registrar fails to notify the parties of a date for the hearing within three months of the completion of the evidence or fails to issue his decision within three months after the conclusion of the hearing, the opponent or the applicant may, after having given the Registrar one month’s written notice, elect to refer the matter to the Court for hearing and determination. (b) The Registrar shall then transmit all relevant documents to the Court.

Security for costs.

41. Where the opponent or the applicant does not reside nor carry on business in Swaziland, the Registrar may require him to give security for the costs the opposition proceedings for such amount as he thinks fit.

Registration and entry in the Register.

42. (1) As soon as may be practicable after the expiration of three months from the date of the advertisement in the Gazette of any application for the registration of a trade mark, the Registrar shall, subject to any opposition and the determination thereof, and subject to the provisions of section 28(1) of the Act, and upon receipt of TM Form No. 9, transmitting the payment of the prescribed fee, enter the trade mark in the Register. (2) The entry of a trade mark in the Register shall include all the particulars specified in section 6(1) of the Act and Regulation 9(1).

Certificate of registration.

43. Upon the registration of a trade mark, the Registrar shall cause to be issued to the applicant a sealed certificate of registration on TM Form No. 10, which shall bear the copy of the trade mark, the registration number, the date of registration, the registered proprietor’s name and address, the class number(s) and specification of goods and services, and any disclaimer, condition or limitation to which the registration is subject, and such registration shall be published in the Gazette.

PART IV

REGULATIONS CONCERNING PART VI OF THE ACT

Renewal reminder.

44. (1) The Registrar shall notify the registered proprietor in writing of the approaching expiration of the term of registration and of the conditions as to payment of fees and other requirements necessary for obtaining renewal. (2) The reminder shall be sent at least six months before the expiration of the registration, but failure to send or receive the reminder, or any error in the reminder, shall not affect the expiration date.

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Application to renew registration.

45. (1) The application to renew the registration shall be made on TM Form No. 11, and the renewal shall be subject to payment of the prescribed fee. (2) The application and the payment of the fee may be effected either within a six months period before the expiration of the registration or within a six month period after the expiration of the registration and in the latter case, an additional fee shall be transmitted with TM Form No. 12. (3) The statements referred to in section 28(2)(a) and (b) of the Act shall be signed by the registered proprietor.

Notice of renewal.

46. Upon the renewal of a registration of a trade mark, the Registrar shall send a notice to that effect to the registered proprietor, and the renewal shall be advertised in the Gazette.

Removal of trade mark from Register.

47. If an application for renewal, as prescribed, has not been made, the Registrar shall forthwith remove the trade mark from the Register as of the date of the expiration of the registration, entering the reason therefor in the Register and shall notify the registered proprietor in writing of the removal and advertise the fact of such removal in the Gazette.

PART V

REGULATIONS CONCERNING PART VII OF THE ACT

Application to remove trade mark or to rectify Register entry.

48. (1) An application to remove a trade mark from the Register on grounds of non-use under section 34(2) of the Act or an application to make, expunge or vary a Register entry under section 37 of the Act shall be made on TM Form No. 14, in two copies, together with the payment of the prescribed fee. (2) An application under this Regulation shall contain a statement indicating the nature of the aggrieved person’s interest, the facts on which he bases his application and the relief sought. (3) The Registrar shall forthwith send a copy of the said application to the registered proprietor.

Procedure.

49. The provisions of Regulations 34 to 41 shall apply mutatis mutandis with respect to the said applications, but the Registrar shall not rectify the Register or remove the trade mark from the Register merely because the registered proprietor has not filed a counter-statement: Provided that in any case of doubt, any party may apply to the Registrar for directions.

Application by registered proprietor or registered user to correct Register.

50. (1) Applications under section 40(1) of the Act shall be made — (a) on TM Form No. 15 for correction of any error in the name, address or description of the registered proprietor; (b) on TM Form No. 16 to enter any change in the name, address or description of the registered proprietor; (c) on TM Form No. 17 for the cancellation of the entry of a trade mark in the Register; (d) on TM Form No. 18 for the striking out of any goods or services from those for which the trade mark is registered; (e) on TM Form No. 19 for entering a disclaimer or memorandum relating to a registered trade mark. (2) Applications under section 40(2) of the Act shall be made — (a) on TM Form No. 15 for correction of any error in the name, address or description of the registered user; (b) on TM Form No. 16 to enter any change in the name, address or description of the registered user.

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(3) In the case of applications under this Regulations, the Registrar shall require such evidence by statutory declaration or otherwise as he may think fit with regard to the circumstances in which the application is made. (4) Where an application is made on TM Form No. 15, No. 16, No. 17, No. 18 or No. 19 by the registered proprietor, the Registrar shall forthwith send a copy thereof to any registered users of the trade mark. (5) Where an application is made on TM Form No. 15 or No. 16 by a registered user, the Registrar shall forthwith send a copy thereof to the registered proprietor of the trade mark. (6) Where an application is made on TM Form No. 17, No. 18 or No. 19, the Registrar, before deciding upon such application, shall advertise the application in the Gazette and allow any person one month from the date of advertisement to object thereto in writing, stating the reasons therefor.

Application for addition to or alteration of trade mark.

51. (1) An application under section 36 of the Act shall be made on TM Form No. 20, together with the payment of the prescribed fee and three additional reproductions of the mark as it will appear when added to or altered on separate TM Form No. 3. (2) The Registrar shall publish an application made under this Regulation in the Gazette and, to the extent relevant, Regulations 29 to 43 shall apply mutatis mutandis to the further proceedings thereon. (3) If the Registrar allows the application, he shall add to or alter the trade mark in the Register and advertise in the Gazette a notification of that fact.

PART VI

REGULATIONS CONCERNING PART VIII OF THE ACT

Application for entry of assignment or transmission.

52. An application under section 41(3) of the Act shall be made on TM Form No. 21, together with the payment of the prescribed fee and shall contain the following matters — (a) the number of the registered trade mark or of the pending application for registration of the trade mark and the name of the proprietor thereof; (b) the goods and services in respect of which the trade mark has been assigned or transmitted; (c) the full name, address, trade or business description and the country or countries of nationality and of residence of the applicant; (d) the date of acquisition of the pending or registered trade mark; (e) a statement that the applicant is entitled to the trade mark by virtue of an assignment or of a transmission, giving full particulars of any instrument of assignment of transmission under which he claims to be entitled to the trade mark; (f) in the case of an assignment, the signature of the parties to the transfer and, in the case of a transmission, only the signature of the applicant.

Evidence of title.

53. (1) When the person applying for registration of his title claims under any instrument which is capable in itself of furnishing proof of his title, the application on TM Form No. 21 shall be accompanied by the instrument of title verifying the assignment or transmission of a certified copy thereof. (2) When a person applying for registration of his title does not claim under any instrument which is capable in itself of furnishing proof of his title, he shall state a case, setting forth the full facts upon which his claim of title is based and showing that the trade mark has been assigned. (3) The Registrar may call on the applicant for such proof or additional proof of title as he may require for his satisfaction.

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Assignment or transmission in respect of only some of the goods or services.

54. When the assignment or transmission of a trade mark is in respect of only some, but not all, of the goods or services for which the trade mark is registered, the Registrar may refuse to accept the application if the effect of the transfer is likely to deceive or cause confusion by the fact of the trade mark being owned by different persons for closely related goods or services.

Entry in the Register.

55. When the Registrar has accepted the application for the transfer of title, he shall — (a) in the case of a registered trade mark, promptly cause the applicant to be registered as proprietor of the trade mark in respect of the relevant goods and services, enter in the Register his name, address, trade or business description and the particulars of the assignment or transmission and notify in writing the new proprietor accordingly; (b) in the case of a pending trade mark, provisionally record the aforementioned matters and enter them in the Register when the trade mark is registered, and, in such case, the registration certificate issued under Regulation 43 shall be made out in the new proprietor’s name.

PART VII

REGULATIONS CONCERNING PART IX OF THE ACT

Application for registered user.

56. An application under section 42 of the Act shall be made jointly by the registered proprietor and the proposed registered user on TM Form No. 22, together with the payment of the prescribed fee.

Entry of registered user and notification.

57. (1) When the Registrar has accepted the application for the registration of a person as a registered user of a trade mark, he shall record the particulars thereof in the Register, indicating the date on which such entry was made, and if, applicable, record, in the Register, the License. (2) The Registrar shall send a notification in writing of the registration of the registered user to the registered proprietor of the trade mark, to the registered user, and to every other registered user whose name is entered in the Register in relation to the same trade mark and cause such notification to be published in the Gazette.

Application by registered proprietor and registered user to vary registered user entry.

58. An application under section 46(a) of the Act shall be made on TM Form No. 23 together with the payment of the prescribed fee.

Application by registered proprietor and registered user to cancel registered user entry.

59. An application under section 46(b) of the act shall be made on TM Form No. 24, together with the payment of the prescribed fee.

Entry in the Register and notification.

60. (1) When the Registrar has accepted an application made under Regulation 58 or 59, he shall record the variation in the Register or cancel the Register entry, as the case may be, indicating the date on which such variation or cancellation took place. (2) A notification of the variation or cancellation shall be sent and published as provided for in Regulation 57.

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Cancellation of entry or striking out of goods and services by Registrar.

61. (1) In case of the registration of a registered user for a period of permitted use, in accordance with section 43(1)(b)(vi) of the Act, the Registrar shall cancel the entry of the registered user at the end of that period. (2) Where some of the goods or services are struck out from those for which a trade mark is registered, the Registrar shall at the same time strike them out from those specifications of registered users of the trade mark in which they are comprised. (3) The Registrar shall send a notification in writing of every cancellation or striking out hereunder to the registered users whose permitted use is affected thereby and to the registered proprietor of the trade mark and publish such notification in the Gazette.

PART VIII

REGULATIONS CONCERNING PART XII OF THE ACT

Reclassification.

62. (1) When a trade mark on the commencement of the Act is registered and classified under a classification other than the International Classification, the registered proprietor shall, upon application for the renewal thereof under section 29 of the Act, affix to his application for renewal a proposal to reclassify, the specification of the goods and services for which the trade mark is registered, in accordance with the International Classification. (2) (a) If the Registrar accepts the registered proprietor’s proposal, he shall alter the Register entry accordingly and publish the alteration in the Gazette. (b) If the Registrar objects or proposes any amendments to the registered proprietor’s proposal, he shall notify the registered proprietor in writing, allowing him one month from the date of the notification to object or to submit a counter-proposal, and then he shall forthwith alter the Register entry as he considers correct and publish the alteration in the Gazette. (c) The Registrar’s decision shall be final.

Application to be entered in the Register of Trade Marks Agents.

63. An application under section 62 of the Act shall be made on TM Form No. 26, together with the payment of the prescribed fee.

Qualifications for entry in the Register of Trade Marks Agents.

64. (1) In order to be entered in the Register of Trade Marks Agents, the applicant shall satisfy the Registrar that — (a) he is admitted enrolled as an attorney or advocate under the Legal Practitioners Act, 1964; or (b) he holds a bachelor of arts degree in law or the degree of bachelor of laws of the former University of Botswana, Lesotho and Swaziland or the former University of Botswana and Swaziland or the University of Swaziland, and has passed the examination prescribed for Trade Marks Agents. (2) Notwithstanding sub-regulation (1), the Registrar may refuse to enter in the Register of Trade Marks Agents any person having been adjudged guilty of criminal conduct or of conduct discreditable to a trade mark agent. (3) The Registrar may, at any time, request such proof of the applicant’s qualifications as he may require for his satisfaction.

Entry in the Register of Trade Marks Agents. 65. When satisfied that the applicant qualifies to be entered in the Register of Trade Marks Agents, the Registrar shall enter his name, address and other particulars in the Register of Trade Marks Agents for a term of five years, to be renewable for successive equal periods on confirmation by the Registrar that the qualifications for entry continue to be satisfied.

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SCHEDULE I (Replaced in its entirety by L.N.100/1994.) FEES

Corresponding TM Matter or Proceeding Amount of Fee Form

1. Authorisation of an agent in a matter or proceeding under the Act or the Regulations (Power of Attorney) E5.00 No. 1 (Regulation 15) ...... 2. Application for registration of a trade mark or of a series of trade marks (Regulations 18, 23 and 28) ...... (a) For one trade mark (i) In one class ...... E200.00 (ii) In every additional class ...... E100.00 (b) For every additional trade mark of the series (i)In one class...... E200.00 (ii)In every additional class...... E100.00 3. Additional reproduction of a trade mark to accompany application for registration on TM Form No. 2 or application by registered proprietor for addition to or alteration of a registered trade mark on TM Form No. 20 (Regulations 20(b) or 51) (a) For one trade mark (i) In one class ...... E20.00 (ii) In every additional class ...... E20.00 (b) For every additional trade mark of the series (i) In one class ...... E20.00 (ii) In every additional class ...... E20.00 4. Request for Registrar’s statement of grounds of decision (Regulation 30 or 51).... E50.00 No. 4 5. Request for correction of error or for permission to amend application (Regulations 32 or 51) ...... E35.00 No. 5 6. (a) Notice of opposition to application for registration of a trade mark or to application by registered proprietor for addition to or alteration of registered trade mark (Regulations 33 – 41 or 51) . E100.00 (b) Counter-statement to notice of

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opposition to application for registration of trade mark or application to remove a trade mark from register for non-use or to rectify a register entry or to notice of opposition to application by registered proprietor or addition to or alteration of registered trade mark (Regulations 33 – 41, 48 or E100.00 51)...... (c) Notice to the Registrar of intention to appear at hearing (Regulations 33 – 41, 48 – 49 or 51)...... E50.00 7. Fee for registration of a trade mark or a series of trade marks (Regulations 42 – 43 or 51) (a) For one trade mark (i) In one class ...... E200.00 (ii) In every additional class ...... E100.00 (b) For every additional trade mark of a series (i) In one class ...... E100.00 (ii) In every additional class ...... E100.00 8. Certificate of registration of a trade mark No. 10 (Regulations 42 – 43) 9. Request for renewal of registration of a trade mark or a series of trade marks (Regulations 44 – 47) (a) For one trade mark (i)In one class...... E150.00 (ii)In every additional class...... E100.00 (b) For every additional trade mark of the series (i)In one class...... E100.00 (ii)In every additional class ...... E100.00 10. Additional fee for late renewal (Regulations 44 – 47) (a) For one trade mark (i)In one class...... E50.00 (ii)In every additional class...... E50.00 (b) For every additional trade mark of the series (i)In one class...... E50.00 (ii)In every additional class...... E50.00 11. Request for hearing (Regulation 17)...... E100.00 12. Application to remove a trade mark from

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register for non-use or to rectify a register entry (Regulations 48 – 49)...... E20.00 13. Application to correct error in the name, address or description of registered proprietor (or registered user) of a trade mark (Regulation 50) (a) For one trade mark...... E20.00 (b) For every additional trade mark...... E10.00 14. Application to enter change in the name, address or description of registered proprietor (or registered user) of a trade mark (Regulation 50) (a) For one trade mark...... E20.00 (b) For every additional trade mark...... E10.00 No. 16 15. Application by registered proprietor for cancellation of trade mark entry in the Register (Regulation 50)...... E20.00 No. 17 16. Application by registered proprietor to strike out goods or services from those for which a trade mark is registered (Regulation 50) ...... E20.00 No. 18 17. Application by registered proprietor for entry in the Register of memorandum or disclaimer relating to a registered trade mark (Regulation 50) ...... E50.00 No. 19 18. Application by registered proprietor for addition to or alteration of registered trade mark (Regulation 51) ...... E50.00 No. 20 19. Application to register assignment or transmission of a trade mark (Regulations 52 – 55) (a) For one trade mark...... E100.00 (b) For every additional trade mark having the same devolution of title ...... E50.00 No. 21 20. (a) Application for registration of registered user of a trade mark (Regulations 56 – 61) (i)For one trade mark ...... E100.00 (ii)For every additional trade mark ...... E50.00 No. 22 (b) Application by registered proprietor and registered user of trade mark to vary entry of registered user (Regulations 56 – 61) (i) For one trade mark...... E50.00 (ii) For every additional trade mark...... E50.00 No. 24 (c) Application by registered proprietor

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and registered user of a trade mark to cancel entry of registered user (Regulations 56 – 61)...... (i)For one trade mark ...... E50.00 (ii)For every additional trade mark ...... E50.00 No. 24 21. Request for Registrar’s certificate or for certified copies of entries in the Register of documents or of extracts (Regulation 9) ...... E20.00 22. Application to be entered in the Register of Trade Marks Agents (Regulations 63 – 65) .. E50.00 No. 26 23. Inspection of the Register and of the search indexes (Regulation 7) ...... E10.00

SCHEDULE II (Replaced in its entirety by L.N.100/1994.) FORMS Form N. 01

TRADE MARKS Notification ex section 21(c) of the Trade Marks Act, 1981 and Regulation 24 of the Trade Marks Regulations, 1989

To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ...... WORD -

RE: APPLICATION FOR REGISTRATION OF THE MARK: ......

DEVICE -

......

IN THE NAME OF: ...... This is to inform you, that the application for registration of the above mentioned mark is not in conformity with the requirements mentioned in section 21(2) of the Trade Marks Act, 1981 and Regulation 24 of the Trade Marks Regulations, 1989. The following elements are missing respectively incomplete: You are invited to complete the application within three months from the date of this Notification lest the application shall be deemed to have been abandoned.

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The Registrar

Form N. 01 TRADE MARKS Notification ex Regulation 26 of the Trade Marks Regulations, 1989

To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ...... WORD -

RE: APPLICATION FOR REGISTRATION OF THE

DEVICE -

......

IN THE NAME OF: ...... This is to inform you that the above mentioned application has been received on ...... In accordance with the provisions of Regulations 24 to 26 of the Trade Marks Regulations, 1989, it has been accorded the following filing date: ...... The serial number is: NR ...... The application will now be submitted to examination ex section 26 of the Trade Marks Act, 1981.

The Registrar

Form N. 2A TRADE MARKS Notification ex Regulation 31 of the Trade Marks Regulations, 1989

To: ...... Date: ......

...... Our Ref: ...... Your letter of: ...... Your Ref: ...... WORD -

RE: APPLICATION FOR REGISTRATION OF THE MARK: ......

DEVICE -

......

...... SERIAL NR ......

DATE OF RECEIPT: ...... IN THE NAME OF:

...... This is to inform you that examination persuant to section 26 of the Trade Marks Act, 1981 the application for registration of the mentioned Mark has been accepted. 261

It will now be advertised in the Gazette.

The Registrar

Form N. 2B TRADE MARKS Notification ex Regulation 31 of the Trade Marks Regulations, 1989

To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ...... WORD -

RE: APPLICATION FOR REGISTRATION OF THE MARK: ......

DEVICE -

......

...... SERIAL NR ......

DATE OF RECEIPT: ...... IN THE NAME OF:

......

...... This is to inform you that, upon consideration of the observations put forward by you, the application for registration of the above mentioned mark:

in its original form,

in its amended form. has been accepted. It will now be advertised in the Gazette.

The Registrar

Form N. 2C TRADE MARKS Notification ex Regulation 31 of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ...... WORD -

RE: APPLICATION FOR REGISTRATION OF THE MARK: ......

DEVICE -

...... 262

...... SERIAL NR ......

DATE OF RECEIPT: ...... IN THE NAME OF:

......

...... This is to inform you that since you do not object the to conditions mentioned in Notification N 4 dated the application for registration of the above mentioned Mark in its amended form, has been accepted. It will now be advertised in the Gazette.

The Registrar

Form N. 1D TRADE MARKS Notification ex Regulation 29 of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ...... WORD -

RE: APPLICATION FOR REGISTRATION OF THE MARK: ......

DEVICE -

......

...... SERIAL NR ......

DATE OF RECEIPT: ...... IN THE NAME OF:

......

...... This is to inform you, that since you do not object to amend the abovementioned application according to the conditions, mentioned in the Notification No. 3 dated...... this application in its amended form, has been accepted. It will now be advertised in the Gazette.

The Registrar

Form N. 3. TRADE MARKS Notification ex Regulation 29(1) of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ...... Your Ref: ...... WORD -

RE: APPLICATION FOR REGISTRATION OF THE MARK: ......

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DEVICE -

......

...... SERIAL NR ......

DATE OF RECEIPT: ......

......

...... This is to inform you that, upon examination, the application for registration of the above mentioned Mark has been objected to on the following grounds — The Applicant is invited: – to amend the application, or – to submit his observations in writing, – to apply for a hearing within two months from the date of this Notification. If no such communication has been received within the set period, the applicant shall be deemed to have withdrawn the application.

The Registrar

Form N. 4. TRADE MARKS Notification ex Regulation 29 (2) of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ...... WORD -

RE: APPLICATION FOR REGISTRATION OF THE MARK: ......

DEVICE -

......

...... SERIAL NR ......

DATE OF RECEIPT: ...... IN THE NAME OF:

......

...... This is to inform you that, upon examination, the application for registration of the above mentioned Mark will be accepted on the following conditions. The applicant is invited to notify the Registrar: – that these conditions have been accepted and that the application will he amended accordingly, or – that he objects to these conditions and that he will submit his observations in writing or apply for a hearing, within two months from the date of this Notification.

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If no such communication has been received within the set period, the applicant shall be deemed to have withdrawn the application.

The Registrar

Form N. 5. TRADE MARKS Notification ex Regulation 30 of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ...... WORD -

RE: APPLICATION FOR REGISTRATION OF THE MARK: ......

DEVICE -

......

...... SERIAL NR ......

DATE OF RECEIPT: ...... IN THE NAME OF:

......

...... This is to inform you, that after consideration of the amendments or observations brought forward by you, the application for registration of the above mentioned Mark has been refused.

The Registrar

Form N. 6. TRADE MARKS Notification ex Regulation 44(1) of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ...... WORD -

RE: APPLICATION FOR REGISTRATION OF THE MARK: ......

DEVICE -

......

...... SERIAL NR ......

DATE OF RECEIPT: ...... IN THE NAME OF:

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......

...... This is to inform you that the registration of the above mentioned Mark falls due for renewal on: The renewal of the registration is subject to payment of the renewal fee, which amounts to: In case renewal is desired, you are invited to send the application for renewal of TM Form 11 and to arrange for the payment of the fee, duly before the expiration date of this registration. Renewal can still be applied for during a period of six months after the expiration date of the registration, however then an additional fee is to be transmitted with TM Form 12. The fees to be paid are mentioned in items 9 and 10 of Schedule 1 to the Trade Marks Regulations, 1989.

The Registrar

Form N. 7. TRADE MARKS Notification ex Regulation 46 of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ...... WORD -

RE: APPLICATION FOR REGISTRATION OF THE MARK: ......

DEVICE -

IN THE NAME OF: ......

...... This is to inform you, that the registration mentioned above has been renewed for a further period of 10 years. The expiration date is: ...... The renewal of this registration will now be advertised in the Gazette.

The Registrar

Form N. 8 TRADE MARKS Notification ex Regulation 55(a) of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ...... WORD -

RE: REGISTRATION OF THE MARK: ......

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DEVICE -

......

REGISTRATION NR: ...... DATE OF RECEIPT: ......

IN THE NAME OF: ......

...... This is to inform you, that the registration mentioned above has been assigned/transmitted to: ...... This change has been entered in the Register on: ...... Particulars of the assignment/transmission are: ......

The Registrar

Form N. 9 TRADE MARKS Notification ex Regulation 51(2) of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ...... WORD -

RE: APPLICATION FOR ALTERATION OF THE MARK: ......

DEVICE -

......

...... REGISTERED UNDER NR ......

DATE OF RECEIPT: ...... IN THE NAME OF:

...... This is to inform you that upon examination the application for alteration of the above mentioned trade mark registration has been accepted. It will now be advertised in the Gazette.

The Registrar

Form N. 10 TRADE MARKS Notification ex Regulation 57(2) of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ...... 267

Your Ref: ......

RE: APPLICATION FOR REGISTRATION OF: ......

AS REGISTERED USER(S) OF THE TRADE MARK(S): ......

IN THE NAME OF: ......

DATED: ......

This is to inform you that ......

...... has/have been registered as registered of the above mentioned trademark(s). This Notification will now be published in the Gazette.

The Registrar

Form N. 11 TRADE MARKS Notification ex Regulation 60(2) of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ......

VARIATION

RE: OF REGISTERED USER ENTRY

CANCELLATION

CONCERNING THE TRADE MARK(S) ......

REGISTERED UNDER NR.(S): ......

THIS IS TO INFORM YOU THAT THE REGISTERED USER ENTRY CONCERNING THE ABOVE MENTIONED TRADE MARK REGISTRATION(S)

HAS BEEN VARIED IN THE FOLLOWING WAY:

HAS BEEN CANCELLED.

This notification will now be published in the Gazette.

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The Registrar

Form N. 12 TRADE MARKS Notification ex Regulation 60(2) of the Trade Marks Regulations, 1989 To: ...... Date: ......

...... Our Ref: ...... Your letter of: ......

Your Ref: ......

CANCELLATION

RE: OF A

STRIKING OUT OF GOODS AND/OR SERVICES

REGISTERED USER ENTRY CONCERNING THE TRADEMARK(S)......

REGISTERED UNDER NUMBER(S): ......

This is to inform you that:

the registration of ...... as registered user of the above mentioned trademark(s) has been cancelled.

the following goods and/or services......

The Registrar

SCHEDULE III

INTERNATIONAL CLASSIFICATION OF GOODS AND SERVICES FOR THE PURPOSES OF THE REGISTRATION OF MARKS

(NICE CLASSIFICATION)

LIST OF CLASSES AND GOODS 1. Chemical products used in industry, science, photography, agriculture, horticulture forestry; artificial and synthetic resins; plastics in the form of powders, liquids or pastes; manures (natural and artificial); fire extinguishing compositions; tempering substances and chemical preparations for soldering; chemical substances for preserving foodstuffs; tanning substances; adhesive substances used in industry. 2. Paints, varnishes, lacquers; preservatives against rust and against deterioration of wood; colouring matters, dyestuffs; mordants; natural resins; metals in foil and powder form for painters and decorators.

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3. Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices. 4. Industrial oils and greases (other than edible oils and fats and essential oils); lubricants; dust laying and absorbing compositions; fuels (including motor spirit) and illuminants; candles, tapers, night-lights and wicks. 5. Pharmaceutical, veterinary and sanitary substances; infants’ and invalids’ foods; plasters, material for bandaging; material for stopping teeth, dental wax; disinfectants; preparations for killing weeds and destroying vermin. 6. Unwrought and partly wrought common metals and their alloys; anchors, anvils, bells, rolled and cast building materials; rails and other metallic materials for railway tracks; chains (except driving chains for vehicles); cables and wires (non-electric); locksmiths’ work; metallic pipes and tubes; safes and cash boxes; steel balls; horseshoes; nails and screws; other goods in non-precious metal not included in other classes; ores. 7. Machines and machine tools; motors (except for land vehicles); machine couplings and belting (except for land vehicles); large size agricultural implements; incubators. 8. Hand tools and instruments; cutlery, forks and spoons; side arms. 9. Scientific, nautical, surveying and electrical apparatus and instruments (including wireless); photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), lifesaving and teaching apparatus and instruments; coin or counter-freed apparatus; talking machines; cash registers; calculating machines; fire- extinguishing apparatus. 10. Surgical, medical, dental and veterinary instruments and apparatus (including artificial limbs, eyes and teeth). 11. Installations for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes. 12. Vehicles; apparatus for locomotion by land, air or water. 13. Firearms; ammunition and projectiles; explosive substances; fireworks. 14. Precious metals and their alloys and goods in precious metals or coated therewith (except cutlery, forks and spoons); jewellery, precious stones; horological and other chronometric instruments. 15. Musical instruments (other than talking machines and wireless apparatus). 16. Paper, cardboard, articles of paper or of cardboard (not included in other classes); printed matter, newspapers and periodicals; books; bookbinding material; photographs; stationery, adhesive materials (stationery); artists’ materials; painting brushes; typewriters and office requisites (other than furniture); instructional and teaching material (other than apparatus); playing cards; printers’ type and cliches (stereotype). 17. Gutta percha, indiarubber; balata and substitutes, articles made from these substances and not included in other classes; plastics in the form of sheets, blocks and rods, being for use in manufacture; materials for packing, stopping or insulating; asbestos, mica and their products; hose pipes (non-metallic). 18. Leather and imitations of leather, and articles made from these materials and not included in other classes; skins, hides; trunks and travelling bages; umbrellas, parasols and walking sticks; whips, harness and saddlery. 19. Building materials, natural and artificial stone, cement, lime, mortar, plaster and gravel; pipes of earthenware or cement; road-making materials; asphalt, pitch and bitumen; portable buildings; stone monuments; chimney pots. 20. Furniture, mirrors, picture frames; articles (not included in other classes) of wood, cork, reeds, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum, celluloid, substitutes for all these materials, or of plastics. 21. Small domestic utensils and containers (not of precious metals, or coated therewith); combs and sponges; brushes (other than paint brushes); brush-making materials; instruments and material for cleaning purposes, steelwool; unworked or semi-worked glass (excluding glass used in building); glassware, porcelain and earthenware not included in other classes. 22. Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks; padding and stuffing materials (hair, kapok, feathers, seaweed, etc.); raw fibrous textile materials. 23. Yarns, threads.

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24. Tissues (piece goods); bed and table covers; textile articles not included in other classes. 25. Clothing, including boots, shoes and slippers. 26. Lace and embroidery, ribands and braid; buttons, press buttons, hooks and eyes, pins and needles; artificial flowers. 27. Carpets, rugs, mats and matting; linoleums and other materials for covering existing floors; wall hangings (non- textile). 28. Games and playthings; gymnastic and sporting articles (except clothing); ornaments and decorations for Christmas trees. 29. Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams; eggs, milk and other dairy products; edible oils and fats; preserves, pickles. 30. Coffee, tea, cocoa, sugar, rice, tapioca, sago, coffee substitutes; flour and preparations made from cereals; bread, biscuits, cakes, pastry and confectionery; ices; honey, treacle; yeast, baking-powder; salt, mustard; pepper, vinegar, sauces, spices; ice. 31. Agricultural, horticultural and forestry products and grains not included in other classes; living animals; fresh fruits and vegetables; seeds; live plants and flowers; foodstuffs for animals; malt. 32. Beer, ale and porter; mineral and aerated waters and other non-alcoholic drinks; syrups and other preparations for making beverages. 33. Wines, spirits and liqueurs. 34. Tobacco, raw or manufactured; smokers’ articles; matches.

SERVICES

35. Advertising and business. 36. Insurance and financial. 37. Construction and repair. 38. Communication. 39. Transportation and storage. 40. Material treatment. 41. Education and entertainment. 42. Miscellaneous.

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THE IMPORT CONTROL ORDER Commentary This is an Order that provides for the control of importation of goods into Swaziland. The minister of Finance may according to section 3 of this order, prescribe the class or kinds of goods that may be imported into Swaziland. He may also issue permits for the importation of certain goods into the country, which permit may prescribe the quantity or value of goods which may be imported thereunder.

The permit may be cancelled, amended or suspended by the minister or any person authorised by him if there is a condition in the permit that the holder has not complied with or if he has been convicted of an offence under this order.

Application for the above-mentioned permit has to be made in writing to the principal secretary accompanied by an amount of money payable by means of uncancelled revenue stamps, determined by the amount of money applied for.

The order goes on to lay down the offences and penalties in relation to contravention of this order, for example a person who imports goods in contravention of any notice issued in the gazette by the minister shall be guilty of an offence and on conviction he shall be liable to a fine of E1000 or a two year imprisonment sentence or both.

The Import Control Order, 1976

Date of commencement: 2nd April, 1976

Date of Assent: 27th March, 1975

A King’s Order-in-Council to provide for import control.

Short title.

1. This King’s Order-in-Council may be cited as The Import Control Order, 1976.

Interpretation.

2. In this Order, unless the context otherwise requires —

“Common Customs Area” means Botswana, Lesotho or the Republic of South Africa;

“importation” means the importation of goods into Swaziland from countries outside the Common Customs Area;

“Minister” means the Minister for Finance;

“Principal Secretary” means the Principal Secretary for Finance.

Powers of Minister in relation to import or export of goods.

3. (1) The Minister may, whenever he deems necessary or expedient in the public interest, by notice in the Gazette, prescribe that no goods of a specified class or kind or no goods other than goods of a specified class or kind shall be — (a) imported into Swaziland; (b) imported into Swaziland, except under the authority of and in accordance with the conditions stated in a permit issued by him or by a person authorised by him.

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(2) For the purposes of subsection (1), goods may be classified also according to the source or origin or the intermediate or final destination of goods or according to the channels along which or manner in which goods are imported according to the purposes for which goods are intended to be used. (3) A permit issued under subsection (1)(b) may prescribe the quantity or value of goods which may be imported thereunder, the price at which, the period within which, the port through or from which, the country from or to which and the manner in which the goods concerned may be imported and such other conditions of whatever nature as the Minister may direct. (4) The Minister or any person authorised by him may cancel, amend or suspend any permit issued under subsection (1)(b), if he is satisfied that any condition of the permit has not been complied with, or if the holder of the permit has been convicted of an offence under this Order, or if he deems fit it is necessary or expedient in the public interest. (5) The Minister may by notice in the Gazette withdraw or amend any notice issued under subsection (1).

Furnishing of information to Minister.

4. The Minister or any person authorised by him, may in writing direct any person who manufactures any goods or trades in any goods or in the course of his business or trade handles or has under his control any goods, to furnish the Minister within a specified time with any information at his disposal in relation to importation, manufacture, supply or storage of the goods concerned.

Offences and penalties.

5. (1) Any person who imports any goods in contravention of any notice issued under section 3, or who fails to comply with a direction made under section 4, or who furnishes any false information in complying with such direction, shall be guilty of an offence and liable on conviction to a fine of one thousand emalangeni or imprisonment for two years, or both. (2) The court convicting any person of importing or attempting to import any goods in contravention of any notice issued under section 3 may declare such goods or the convicted person’s rights thereto, to be forfeited to the Government: Provided that such declaration shall not affect any rights which any person other than the convicted person may have to the goods in question, if it is proved that he did not know that the goods were being dealt with in contravention of such notice: Provided further that the convicted person, as well as the person claiming any right to such goods, may appeal against any such determination as if it were a conviction by the court making the determination, and such appeal may be heard either separately or jointly with an appeal against such conviction.

Application for import permit.

6. (1) An application for an import permit shall be made in writing to the Principal Secretary, and each application shall be accompanied by a fee of fifty cents for every amount of one thousand emalangeni applied for payable by means of uncancelled revenue stamps of the Kingdom of Swaziland. (Amended K.O-I-C. 4/1993.) (2) No fees in respect of an unsuccessful application for a permit shall be refunded to an applicant. (3) Any statutory body in which Government has a financial interest is hereby exempted from payment of the fee mentioned in subsection (1).

Jurisdiction of courts. 7. Notwithstanding anything in any other law, a magistrate’s court shall have jurisdiction to impose any penalty prescribed by this Order.

Regulations.

8. The Minister may make such regulations for the better carrying out of this Order as he may deem fit.

Repeal and amendment.

9. (1) The Exportation and Importation Restriction Act No. 46 of 1939 is amended by the deletion of— 273

(a) “and importation” in the title of the said Act; (b) any reference in the said Act to the importation or importing of any articles wherever such reference appears in the Act. (2) The Import Control Regulations, No. 46 of 1939(3) are hereby repealed. (3) The Cash Registers etc. Import Regulations, No. 46 of 1939(5) are hereby repealed. (4) The Textile Piece Goods Import Regulations, No. 46 of 1939(4) are hereby repealed. (5) (Repealed K.O-I-C. 28/1977.)

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THE INCOME TAX ORDER Commentary

The purpose of the order as per the preamble is that it is a King’s Order and Counsel to consolidate the law relating to the taxation of income. It is worth noting that the Income Tax Order has many and extensive amendments that have been made to it such that one wonders why it was not just resent in totality to cater for the times and the exigencies of the income tax in Swaziland.

The definitions clause is very lengthy and covers a number of different aspects some of them worth noting being child which is defined as a child, step-child or adopted child of the tax of the tax payer etc. The difference from the sales tax act, the income tax act does in fact define company, and proceeds to also to identity a person as including a company, a body or persons whether incorporated or not an insolvent estate and the estate of a deceased and any trust. If one were to apply rules of interpretation it might be a long shot but it could be argued that perhaps the sales tax act did not intend to take into account bodies incorporated or not, insolvent estates, companies and trusts because all it really said was that person includes the estate of a deceased person.

It is worth noting the definitions clause with regards to retirement annuity fund which by themselves seem to be extensive but include the fact that the fund must be a permanent fund, it must be under the control of trustees and it must be under the management of the Swaziland Royal Insurance Corporation and it must provide for rules that require periodical contributions by the members and that not more than one third of the total value of the annuity to which any person becomes entitled may be committed to a single payment and that no portion of the annuity payable to the widow, child, dependant or nominees of the deceased member may be committed later than six months from the date of the death of such member.

These rules and many more follow and these attempt to clearly define what the commissioner shall consider as a retirement annuity fund. The word royalty is also extensively covered. An interesting definition is that of the word steamer in the act which relates to any means of public and fare charging transport by sea. The act also has wise employment income but does not bother to define what means. The office of the commissioner of taxes and deputy commissioner of taxes are established under the income tax order under section 3(1) thereof.

Part II then begins dealing with the tax normal tax to be charged in Swaziland, the rates to be levied are then described in the third schedule of the act. Section 7 defines gross income and then gives a number of exclusion as to what it shall not consist off.

Section 8 provides for normal tax rebates and includes amongst those normal tax rebates premiums paid by a party during the year of assessment under which that person, the spouse or the child or that person has insured against death accidents or sickness.

Section 9 determines that income shall be deemed to have been accrued to that person despite the fact in short he has not actually received it in hand. Taxation derived from someone is to be determined under the first schedule.

Section 11 gives a number of circumstances where certain income will be deemed to have been income made in Swaziland such as for instance where an agreement by persons in Swaziland for the sale of goods, whether such goods have been delivered or not or are not to be delivered in or out of Swaziland. This presupposes that the mere fact that the agreement was made in Swaziland shall mean that tax must be paid in Swaziland, in fact this will go on to state where work or labour is done by any person in Swaziland, the tax on that payment is to be made in Swaziland. This section and its various subsections also provides for an number of very interesting scenarios for the payment of tax.

Section 12 then gives a whole range of exemptions from normal tax.

Section 13 states that if a person has a business beyond Swaziland the profits shall be determined by looking or having regard to the assets of the person in Swaziland and the profits of the person wherever they are shall be apportioned as against the assets in

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Swaziland. If the commissioner or the person affected is unhappy with the situation then they can claim the right to an assessment of the actual profits derived from sources in Swaziland.

Section 14 then gives how taxable income shall be determined which shall include expenditure and loss actually incurred in Swaziland, expenditure actually incurred by the taxpayer in the year of assessment for repairs of property etc. What the commissioner may agree as just a reasonable diminished value by reason of ware of tear of plant machinery etc. these and other reasons shall then be determined which will then bring out what will be referred to as the taxable income of the person or business. Owning a house in terms of section 14 does render one able to claim certain interest allowance thus meaning that a certain allowance will be given to them in which they will pay tax.

Section 15 provides for deductions that shall not be allowable and these amongst other things will include domestic and private expenses, normal tax, income carried on any reserved fund or even any money not wholly or exclusively laid out or expended for the purpose of trade.

Section 16 lays down special procedure for the calculation of capital expenditure allowance in connection with mining operations and section 17 has calculation of capital expenditure on charge of ownership of mining property.

Section 18 lays down an allowance for training expenses in terms of approved training schemes which is those that are for the training of citizens of Swaziland in an industry which is approved by the commissioner and subject the conditions that he may determine.

Section 19 provides for income of beneficiaries and estates of deceased persons and states that tax shall be payable on income that would have been accrued to the deceased but it also states that certain of that shall not be viewed as income at the discretion of the commissioner.

Section 20 where a person enters into a Hire-Purchase or instalment sale agreement either for movable property or land, the act determines that the tax payer shall have accrued tax on the signing of the agreement. However the commissioner may make allowances in this regard as also in accordance with Section 14. Whatever allowances made however shall be included as income for the tax payer who tends in the following year of assessment and shall form part of his tax.

Section 21 states that non resident shareholders tax shall be paid at the rate of 15% of any amount of any dividend, however if the dividend is being paid or is payable to a company resident in Botswana, Lesotho Namibia or South Africa and that company does not have a branch or subsidiary outside of these countries, the rate of tax shall be of the first mentioned company at a rate of twelve and a half percent. Non resident tax shall be paid by a person not ordinarily resident or carrying on business in Swaziland by an estate of a person in terms of section 12 or a company which has its place of effective management outside Swaziland or the holder of a bearer script irrespective of whether he is a resident within or without Swaziland. The person is liable in terms of section 23 for the payment of such shall be those in whose favour the contents described in section 22 accrue. Section 24 states that the tax shall be recovered from the same above mentioned persons.

Section 25 provides the procedure in which tax of a company operating outside of Swaziland shall be determined and section 26 states that the date of payment of such tax shall be within 30 days of the date on which the dividend is payable.

Section 32 provides that entertainers and sportsmen shall pay a rate of tax of 15% of the gross remuneration or gross receipts received or accrued to such. Division for thereof royal and management charge states that there shall be a tax paid of only royalty and management charge received by or accrued to or in favour of any person not ordinarily resident or carrying on business in Swaziland.

Section 32 provides that there shall be withholding tax from payments of interest made to persons ordinarily resident in Swaziland by every financial institution including a building society which makes payment interest to an individual ordinarily resident in

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Swaziland. This charge shall be at the rate of 10% of the gross amount. The act provides that this tax shall be a final tax and no further tax liability shall be opposed upon the taxpayer in respect of the interest to which the tax relates.

Part IV states that there shall be retains and assessments and that the commissioner shall annually give public notice to all persons that they are required to furnish within 30 days from the date of notice or such further time as he may determine returns for the assessment of tax. It proceeds and gives and very detailed explanation exactly as to how, when, where and why these assessments are to be made and how they are to be returned to him and in what form and manner they are to be answered. Section 33 states that an assessment shall not be required on ordinary employees.

Section 34 gives a duty to those persons submitting accounts and in support of returns or preparing accounts for others to state the extent of the examination of the books of account for the person for whom they have examined the accounts.

Section 34 provides that financial statements are to be auditored by a registered auditor only and a registered auditor has the meaning assigned to it by the institute of accounts act of 1985.

Section 34ter states that the commissioner may require further information before proceeding with this assessment and section 35 says that there may be a production of documents and evidence on oath which may be required by the commissioner.

Section 36 gives the powers to the commissioner or an officer under the commissioner to examine to enter into the business premises of any person and examine the books of accounts or any other records that he may consider necessary. It is worth noting the difference between the income tax act and the sales tax in that whilst in the sales tax an officer of the commissioner may remove any documents to a place that he may deem necessary in this act under subsection 4 and an officer under this section shall not remove a cause to remove any documents that he finds in the business premises. It is also worth noting something different between two acts, in fact any person obstruction or hindering an officer in the discharge of his duties under the income tax order shall be guilty of an offence and the sales tax act in a way allows a person to obstruct an officer in that he is required to produce proof before he proceeds with any such investigation.

Section 37 requires returns of persons employed such as what records there are regarding particular class of persons employed by someone, their earnings, their salaries, their wages, their allowances or pensions and any other payments made to them.

Section 38 requires this information to be furnished on request. If a person fails in terms of section 39 to make payment or to furnish returns on time then the commissioner if he is not satisfied with the returns or the information given to him with regards to the default or the lateness or the inability to make the returns make an assessment of what he believes should be tax rate of tax to be paid by the defaulter. Section 40 gives the power to require tax payer to pay in addition to tax chargeable any other amount due or in case of default or omission to pay tax. In each of the defaulting situations the commissioner can demand twice the tax that should have been paid be paid. The commissioner may in terms of section 41 raise additional assessments where he believes that amounts that have should have been subject to tax have not been assessed to tax.

Section 42 provides that records shall be kept of assessments and section 42 says the particulars of such tax assessment shall not be open to public inspection but that taxpayer shall be entitled to a certified copy. Part V then talks about representative tax payers and the liability of a representative tax payer. A representative tax payer shall in terms of section 46 be entitled to recover tax that he has paid from the person on whose behalf it was paid. However this represented tax payer shall be liable for tax if during the time of his represented capacity the tax assessed remains unpaid and he alienates it or charges it or disposes of the income in respect of which the tax is chargeable. Where a shareholder is absent from Swaziland and tax is payable on his dividends, the company shall be assumed to be his agent and it shall make the necessary tax payments.

Section 49 re-instates that the commissioner may appoint any person as an agent of another person who should pay tax and that such agent for the purpose of the act may be required to pay the commissioner any tax due. The commissioner has power over all property of any kind vested in or under the control or management of any agent or trustee.

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Section 51 then goes through the issue of the public officers of company and states that every company having a business in Swaziland shall have a public officer who shall be appointed by the company and approved by the registrar within one month of the company coming into effect.

Part VI deals with objections and appeals and states that there shall be a time and a manner of lodging objections. All objections before the commissioner shall be in writing.

The Income Tax Order 12 of 1975 (Title amended A.11/1985.)

Date of Commencement: 1st July, 1975.

Date of Assent: 8th July, 1975.

Arrangement of Sections

PART I

GENERAL 1. Short title. 2. Interpretation. 3. Appointment of officers. 4. Delegation of functions. 5. Preservation of secrecy.

PART II

NORMAL TAX 6. Levy of normal tax and rates thereof. (Third Schedule) 7. Meaning of gross income. 8. Normal tax rebates. 9. Capitalised or credited income. 10. Taxation of income derived from farming. (First Schedule) 11. Circumstances where certain amounts are deemed to be income in Swaziland. 12. Exemptions from normal tax. 13. Business extending beyond Swaziland. 14. Determination of taxable income. 14A. House ownership and improvement interest allowance. 15. Deductions not allowable. 16. Calculation of capital expenditure allowance in connection with mining operations. 17. Calculation of capital expenditure on change of ownership of a mining property. 18. Allowance for training expenses. 19. Income of beneficiaries and estates of deceased persons. 20. Hire purchase or other instalment sale agreements.

PART III

NON-RESIDENT TAX

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DIVISION I — SHAREHOLDERS 21. Levy of non-resident shareholders tax. 22. Income subject to tax. 23. Person liable for tax. 24. Recovery of tax. 25. Determination of tax if company operates outside Swaziland. 26. Date of payment of tax.

DIVISION II — INTEREST 27. Levy of non-residents tax on interest. 28. Application of provisions. 29. Exemptions. 30. Persons liable for non-residents tax on interest. 31. Deduction or withholding of non-residents tax on interest. 32. When non-residents tax on interest is payable.

DIVISION III — ENTERTAINERS AND SPORTSMEN 32A. Levy of non-residents’ tax on entertainment and sports.

DIVISION IV — ROYALTY AND MANAGEMENT CHARGE 32B. Levying of tax royalties and management charge paid to non-resident persons.

DIVISION V — INTEREST PAID TO RESIDENTS 32C. Withholding tax from payments of interest made to persons ordinarily resident in Swaziland.

PART IV

RETURNS AND ASSESSMENTS 33. Notice requiring returns and manner of furnishing returns. 33bis. Assessment not to be made on certain persons. 34. Duty of persons submitting accounts in support of returns or preparing accounts for others. 34bis. Financial statements to be audited by a registered auditor. 34ter. Inquiry before assessment. 35. Production of documents and evidence on oath. 36. Income of a married woman. 37. Duty to furnish returns of persons employed. 38. Duty to furnish information on request. 39. Estimated assessments. 40. Additional tax in case of default or omission. 41. Additional assessments. 42. Assessments and the recording thereof. 43. Inspection of assessments.

PART V

REPRESENTATIVE TAXPAYERS 44. Representative taxpayers. 45. Liability of representative taxpayer. 46. Right of representative taxpayer to indemnity.

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47. Personal liability of representative taxpayer. 48. Absent shareholder. 49. Commissioner’s power to appoint agent. 50. Remedy against property. 51. Public officers of companies.

PART VI

OBJECTIONS AND APPEALS 52. Time and manner of lodging objections. 53. Onus of proof as to exemptions, etc.. 54. Appeal against Commissioner’s decision. 55. Obligation to pay not suspended pending appeal. 56. Questions of law.

PART VII

PAYMENT AND RECOVERY OF TAX 57. Appointment of day for payment of tax. 58. Payments of employees tax. (Second Schedule) 58A. Payment of provisional tax. (Fourth Schedule) 59. Withholding of tax from payments to non-resident contractors. 59A. Withholding tax on payments to non-resident persons. 60. Persons by whom the tax is payable. 61. Recovery of tax. 62. Tax to be a liquid debt. 63. Conclusive evidence of making of assessment.

PART VIII

MISCELLANEOUS 64. Refunds. 65. Transactions, operations or schemes for purposes of avoiding or postponing liability for or reducing amounts of taxes on income. 66. Offences. 67. Authentication and service of documents. 68. Double taxation agreements. 69. Regulations. 69bis. Commissioner’s annual report 70. Repeal. First Schedule. Second Schedule. Third Schedule. Fourth Schedule.

A King’s Order-in-Council to consolidate the law relating to the taxation of incomes.

PART I

GENERAL 280

Short title.

1. This order may be cited as the Income Tax Order, 1975. (Amended A.11/1985.)

Interpretation.

2. In this Order, unless the context otherwise requires — “agent” includes a person appointed by the Commissioner under section 49 and also any partnership, company, or any other body of persons whether incorporated or not, which is acting as an agent; “approved bursary scheme” means a bursary scheme operated by an employer which is registered with the Commissioner and approved by him in respect of the year of assessment in question upon the following terms and conditions and such others as he may determine — (a) that the bursaries under the scheme are awarded on merit according to need to enable students to pursue secondary or high school education at public educational institutions; (b) that the children of all employees of the employer are eligible for such bursaries; (c) that a bursary awarded to any recipient shall not exceed E2 000 per annum or such other sum as the Commissioner may specify generally; and (Amended A.7/1992.) (d) that a bursary scheme is governed by properly defined rules which, together with and amendments thereto, are approved by the Commissioner. (Added A.5/1988.) “approved company in the handicraft and cottage industry sector” means a company approved by and registered by the Commissioner in consultation with the Ministry of Commerce, Industry and Tourism for the relevant year of assessment; (Added A.7/1989.) “approved export promotion expenditure” means any expenditure incurred by an approved company in the handicraft and cottage industry sector for the purpose of expanding exports which have been approved by the Commissioner in consultation with the Ministry of Commerce, Industry and Tourism; (Added A.7/1989.)

“approved export trading house” means a company engaged in the export of products of other companies in the handicraft and cottage industry sector and which is approved and registered by the Commissioner in consultation with the Ministry of Commerce, Industry and Tourism for the relevant year of assessment; (Added A.7/1989.) “assessment” means — (a) the determination of an amount upon which any tax leviable under this Order is chargeable; or (b) the determination of any loss ranking for set-off; and for the purposes of Part VI includes any determination by the Commissioner in respect of any of the reductions referred to in section 8 and any decision of the Commissioner which is in terms of this Order subject to objection and appeal; “assistant Commissioner” (Deleted A.6/2000.) “benefit fund” means — any fund (other than a pension fund, provident fund or retirement annuity fund) which, in respect of the year of assessment in question, the Commissioner is satisfied is a permanent fund bona fide established for the purpose of providing sickness, accident or unemployment benefits for its members or for providing benefits for the widow, children, dependants or nominees of deceased members and includes any fund which would, but for the fact that it does not provide for payment of annuities on the retirement of its members, be approved under the definition of “pension fund” in this section; “child” means — any child, step-child or adopted child of the taxpayer of whom he has the custody and whom he wholly maintains, provided that in the case of an adopted child such child shall have been adopted by the taxpayer — (Replaced A.11/1982.)

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(a) under the Adoption of Children Act No. 64 of 1952; (b) in accordance with Swazi customary law, provided that proof of such adoption is supported by a certificate under the signature of a person appointed in writing and gazetted by the Minister for Home Affairs either generally or specially for such purpose; or (Amended A.11/1982.) (c) under the law of any country other than Swaziland, provided that the Commissioner is satisfied that the adopted child is under such law accorded the status of a legitimate child of the adoptive parent and the adoption was made at a time when the taxpayer was resident in such country; “Commissioner” means — the Commissioner of Taxes appointed under section 3; “company” includes — (a) any association incorporated by or under any law in Swaziland; (b) any association which is incorporated outside Swaziland but carries on business or has an office or place of business in Swaziland; or (c) any body corporate incorporated by any law in force in Swaziland or by any law in force in any country outside Swaziland but carrying on business in Swaziland; “court” means — a court of competent jurisdiction, save that for the purposes of Part VI it means the High Court of Swaziland;

“Deputy Commissioner” means a Deputy Commissioner appointed under section 3; (Added A.6/2000.)

“dividend” means — any amount distributed by a company (not being an association or institution to which section 12(1)(a)(iii) and (iv) apply) to its shareholders, and for this purpose “amount distributed” includes — (a) in relation to a company that is being wound up or liquidated, any profits distributed, whether in cash or otherwise, other than those of a capital nature, earned before or during the winding up or liquidation; (b) in relation to a company that is not being wound up or liquidated, any profits distributed, whether in cash or otherwise, and whether of a capital nature or not, including an amount equal to the nominal value of any debentures or securities awarded to the shareholders; (Amended A.10/1991.) (c) in the event of the partial reduction of the capital of a company, any cash or the value of any asset which is given to a shareholder in excess of the cash equivalent of the nominal value by which the shares of that shareholder are reduced; and (d) in the event of the reconstruction of a company, any cash or the value of any asset which is given to a shareholder in excess of the nominal value of the shares held by him before the reconstruction: Provided that for the purposes of this or in definition an asset shall be deemed to have been given to a shareholder of a company if any asset or interest, benefit or advantage measurable in terms of money is given or transferred to such shareholder or if the shareholder is relieved of any obligation measur-able in terms of money; “executor” means — any person to whom letters of administration have been granted in respect of the estate of a deceased person under any law relating to the administration of estates, and includes any person acting or authorised to act under letters of administration granted outside Swaziland and signed and sealed by the Master in accordance with the relevant provisions of the Administration of Estates Act No. 28 of 1902 for use in Swaziland, or, in the case of where the estate is not required to be administered under the supervision of any court, the person administering the estate; “financial year” — in relation to a company, means — 282

(a) the period, whether of twelve months or not, commencing upon the date of the formation of such company and ending upon the last day of June immediately succeeding such date or upon such other date as the Commissioner, having regard to the circumstances of the case, may approve; or (b) any period subsequent to the period referred to in paragraph (a) commencing immediately on the day following the last day of the immediately preceding year of assessment of that company and ending after the expiration of twelve months from such date or any other period ending on such date as the Commissioner, having regard to the circumstances of the case, may approve; (Added A.11/1985.)

“gross income” — has the meaning assigned to it under section 7; “income” means — the amount remaining of the gross income of any person for any year or period of assessment after deducting therefrom any amounts exempt from income tax in the hands of such person; “industrial building” means any building — (a) which contains and is used solely or mainly for the purpose of operating machinery worked by steam, electricity, water or other mechanical power; (b) which is on the same premises as any other building mentioned in paragraph (a), and which, in the opinion of the Commissioner, suffers depreciation by reason of the operation of machinery installed in such other building; (c) which, in the opinion of the Commissioner, suffers depreciation by reason of the use of chemicals, corrosives, furnaces of any des-cription or any other agent directly utilised in the particular trade or industry of which the building forms an integral and essential part; (d) erected and used for the purpose of carrying out industrial research or scientific experiments into improved or new methods of manu-facture; (e) which, by reason of the trade carried on by the taxpayer is, in the opinion of the Commissioner, used for industrial purposes; “management charge” means a payment of any kind or nature, other than a payment to which the Second Schedule applies, in consideration for any services of a technical, managerial, administrative or consultancy nature; (Added A.6/2000.) “married” (Deleted A.10/1991.) “married person” means any person who during — (a) any portion of the period in respect of which the assessment was made was married or was a widower or a widow; or (b) the whole of such period was separated under a judicial order or written agreement; (Amended A.11/1982.) “mining operations” and “mining” include — every method or process by which any mineral is won from the soil or from any substance or constituent thereof; “Minister” means — the Minister for Finance and Economic Planning; “non-resident tax” means the non-resident shareholders tax or the non-residents tax on interest, as the case may be, provided for in Part III; “normal tax” means the tax payable in terms of section 6(1); “pension fund” means a superannuation, pension, provident, or widows’ and orphans’ fund established by law and any such fund other than a benefit fund, provident fund or retirement annuity fund not established by law which is approved by the Commissioner in respect of the year of assessment in question:

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Provided that the Commissioner may approve a fund subject to such limitations or conditions as he may determine, but shall not approve a fund unless, in respect of the year of assessment in question, he is satisfied that — (a) the fund is a permanent fund bona fide established for the purpose of providing annuities for employees on retirement from employment, or mainly for such purpose, and also for the purpose of providing benefits other than annuities for employees or benefit for widows, children, dependants or nominees of deceased employees; and (b) the rules of the fund provide — (i) that all annual contributions of a recurrent nature to the fund shall be in accordance with specified scales; (Amended K.O-I-C. 39/1975.) (ii) that membership of the fund throughout the period of the employment shall be a condition of employment by the employer of all persons of the class specified therein who enter his employment on or after the date upon which the fund comes into operation; (Amended K.O- I-C. 1/1976.) (iii) that any person who immediately prior to such date was employed by the employer and who on such date falls within such class may, on application made within a period of not more than twelve months as from such date, be permitted to become a member of the fund on such conditions as may be specified in the rules; (iv) that not more than one-third of the total value of the annuity to which any employee becomes entitled may be commuted for a single payment, except where the annual amount of such annuity does not exceed seven hundred and twenty Emalangeni; (Amended A.7/1992.) (v) for the administration of the fund in such a manner as to preclude the employer from controlling the management or assets of the fund or from deriving any monetary advantage from moneys paid into or out of the fund; and (vi) that the Commissioner shall be notified of any amendment of any of the rules; and (c) the rules of the fund have been complied with; “person” includes any company, a body of persons whether incorporated or not, an insolvent estate, the estate of a deceased person and any trust; (Amended A.11/1985; A.6/2000.) “provident fund” means a fund other than a pension fund, benefit fund or retirement annuity fund, which is approved by the Commissioner in respect of the year of assessment in question. (Replaced A.9/1979.)

Provided that the Commissioner may approve a fund subject to such limitations or conditions as he may determine but shall not approve a fund unless, in respect of the year of assessment in question he is satisfied that — (a) the fund is a permanent fund bona fide established solely for — (i) the purpose of providing benefits for employees on retirement from employment, or (ii) the purpose of providing benefits for widows, children, dependants or nominees of deceased employees, or (iii) a combination of those purposes; (b) the rules of the fund contain provisions similar in all respects to those required to be included in the rules of a pension fund as provided for in paragraph (b) to the proviso of the definition of “pension fund”, save that sub-paragraph (iv) thereof be omitted from such rules for the purpose of this paragraph; (Amended K.O-I-C. 1/1976.) (c) the rules of the fund have been complied with; “public officer” in relation to a company means the person appointed under section 51;

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“public servant” means the holder of any public office or emolument in the civil service of the Government of Swaziland and includes a person appointed to act in such public office; “representative taxpayer” has the meaning assigned to it in section 44; “retirement annuity fund ” means any fund (other than a pension fund, provident fund or benefit fund) which is approved by the Commissioner in respect of the year of assessment in question: Provided that the Commissioner may approve a fund subject to such limitations or conditions as he may determine, but shall not approve any fund in respect of any year of assessment unless he is in respect of that year of assessment satisfied that — (a) the fund is a permanent fund bona fide established for the sole purpose of providing life annuities for the members of the fund or annuities for the widows, children, dependants or nominees of deceased members; and (b) the fund is under the control of trustees resident in Swaziland and that if the trustees have provided for the management of the fund by an insurance company such company shall be the Swaziland Royal Insurance Corporation; and (c) the rules of the fund provide — (i) for periodical contributions by the members; (ii) that not more than one-third of the total value of any annuities to which any person becomes entitled, may be commuted for a single payment, except if the annual amount of such annuities does not exceed seven hundred and twenty Emalangeni; (Amended A.7/1992.) (iii) that no portion of any annuity payable to the widow, child, dependant and nominees of a deceased member may be commuted later than six months from the date of the death of such member; (iv) adequate security to safeguard the interests of persons who may become entitled to annuities; (v) that no member shall first become entitled to the payment of any annuity after he reaches the age of seventy years or, except in the case of a member who becomes permanently incapable through infirmity of mind or body of carrying on his occupation, before he reaches the age of fifty-five years; (vi) that if a member dies before he becomes entitled to the payment of an annuity, the benefits shall not exceed a refund to his estate or to his widow, children, dependants or nominees of the sum of the amounts (with or without reason-able interest thereon) contributed by him and an annuity or annuities to his widow, children, dependants or nominees; (vii) that if a member dies after he has become entitled to an annuity no further benefit shall be payable other than an annuity or annuities to his widow, children, dependants or nominees; (viii) that the sum of the annuities payable to the widow, children, dependants and nominees of a deceased member who was in receipt of an annuity at the time of his death shall not exceed the amount of such annuity; (ix) that a member’s contributions shall cease not later than the day before his birthday following the date on which he first becomes entitled to the payment of any annuity; (x) that a member who discontinues his contributions prematurely shall be entitled either to an annuity (payable from the date on which he would have become entitled to the payment of an annuity if he had continued his contributions) determined in relation to his actual contributions or to be reinstated as a full member under conditions prescribed in the rules of the fund; (xi) that upon the winding up of the fund a member’s interest therein must either be used to purchase a policy of insurance which the Commissioner is satisfied provides benefits similar

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to those provided by such fund or be paid for the member’s benefit into another approved retirement annuity fund; (xii) that save as is contemplated in sub-paragraph (ii) no member’s rights to benefits shall be capable of surrender, commutation or assignment or of being pledged as security for any loan; (xiii) that the Commissioner shall be notified of all amendments of the rules; and (d) the rules have been complied with;

“Royalty” means any payment, including a premium or like consideration, made for — (a) the use of, or right of use, any patent, design, trademark, or copyright, or any model, pattern, plan, formula, or process, or any property or right of a similar nature; or (b) the use of, or right to use — (i) any motion picture film; or (ii) any video or audio material (stored on film, tape, disc, or other medium) for use in connection with television or radio broadcasting; or (iii) any sound recording or advertising matter connected with material referred to in sub- paragraph (i) or (ii); or (c) the use of, or the right of use, or the receipt of, or right to receive, any video or audio material transmitted by satellite, cable, optic fibre, or similar technology for use in connection with television or radio broadcasting; or (d) the imparting of, or the undertaking to impart, any scientific, technical, industrial, or commercial knowledge or information; or (e) the rendering of, or the undertaking to render assistance ancillary to a matter referred to in paragraphs (a) to (d); or (f) a total or partial forbearance with respect to a matter referred to in paragraphs (a) to (e); (Added A.6/2000.) “shareholder”, in relation to any company, means the registered shareholder in respect of any share, except that if some person other than the registered shareholder is entitled, whether by virtue of any provision in the memorandum or articles of association of the company or under the terms of any agreement or testamentary disposition or otherwise to all or part of the benefits of the rights of participation in the profits or income attaching to the shares so registered, such other person to the extent that he is entitled to such benefits shall also be deemed to be a shareholder; “steamer” includes any means of public and fare-charging transport by sea; (Added A.6/2000.) “tax” or “taxation” means any tax or duty leviable under this Order or any previous income tax law, as the case may be; “taxable income” means the amount remaining after deducting from the income of any person all the amounts allowed to be deducted or set off in Part II; “taxpayer” means any person chargeable with any tax or duty leviable under this Order and, for the purposes of any provision relating to any return, includes every person required by this Order to furnish such return; “trade” includes every profession, trade, business, employment, calling, occupation or venture, including the letting of any property; “trustee” includes in addition to every person appointed or constituted as such by act of parties, by will, by order or declaration of Court or by operation of law, an executor or administrator, tutor or curator, and any person having the administration or control of any property subject to a trust, usufruct, fidei commissum or other limited interest, or acting in any fiduciary capacity, or having, either in a private or an official capacity, the possession, direction, control or management of any property of any person under legal disability;

“this Act” includes any regulations made thereunder;

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“wife’s employment income” (Added A.11/1985; Deleted A.10/1991.)

“year of assessment” means any year or other period in respect of which any tax or duty leviable under this Order is chargeable: Provided that in the case of a company any reference to a year of assessment shall be construed to mean the financial year of that company. (Added A.11/1985.)

Appointment of officers.

3. (1) For the administration of this Order the Minister may designate a public servant as Commissioner of Taxes and public servants as Deputy Commissioners of Taxes. (Amended A.6/2000.) (2) A Deputy Commissioner shall perform such general official duties as he is required to perform by this Order or by the Commissioner under the control of the Commissioner, and shall, in case of illness, absence or temporary incapacity of the Commissioner, act in his name and on his behalf and while so acting shall have and may exercise all the powers conferred and shall perform the duties imposed upon the Commissioner under this Order. (Amended A.6/2000.) (3) Any office under this Order may be held in conjunction with any other office in the civil service.

Delegation of functions.

4. The Commissioner may with the approval of the Minister delegate to any public servant any duties, powers and functions by this Order conferred or imposed upon him other than such power of delegation.

Preservation of secrecy.

5. (1) Every person designated under or employed in carrying out the provisions of this Order shall, subject to this section, preserve and aid in the preservation of secrecy with regard to all matters that may come to his knowledge in connection with the performance of his duties in respect of such provisions, and shall not communicate any such matter to any person other than the taxpayer or his lawful representative nor suffer any such person to have access to any records in the possession or custody of the Commissioner except in the performance of his duties under this Order or by order of a court: Provided that — (a) the Commissioner may in seeking the advice of or in instructing the Attorney-General or any legal practitioner acting on behalf of the Commissioner disclose such information and such documents as may be relevant in order to obtain such advice or in giving such instructions; (b) the Auditor-General acting under the Finance and Audit Act, no. 18 of 1967 may have access to such documents in the possession or custody of the Commissioner as are required by the Auditor-General for the performance of his powers or duties, and the Director of Statistics shall, subject to the Statistics Act, No. 14 of 1967 have a similar right in relation to the performance by him of his powers and duties under that Act; (c) the information obtained by the Commissioner in the performance of his powers and duties under this Order or any previous law relating to income tax may be used by him for the purposes of any other fiscal law administered by him; (ca) The Secretary for Customs and Excise may have access to such documents and information in the possession or custody of the Commissioner, as are required by him for the performance of his duties under the Sales Tax Act, 1983; (Added A.9/1988.) (d) a taxpayer may waive, expressly or by implication, any right which he may have under this Order to secrecy of any matter relating to him or his affairs. (2) Every person so designated or employed shall, before acting under this Order, take and subscribe before a Commissioner of Oaths or a Justice of the Peace, such oath of fidelity or secrecy as may be prescribed. (3) Every person who, in contravention of the true intent of the oath of fidelity or secrecy taken by him and without lawful excuse, reveals any matter or thing which has come to his knowledge in his official capacity shall be guilty of an offence and liable on conviction to a fine of five hundred Emalangeni or imprisonment for two years, or both.

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(4) If any person acts in the execution of his office before he has taken the prescribed oath he shall be guilty of an offence and liable on conviction to a fine of twenty Emalangeni. (5) Any person designated by competent authority to audit the assessments and accounts of the Commissioner shall for the purposes of this section be deemed to be a person appointed under or employed in the carrying out of the provisions of this Order.

PART II

NORMAL TAX

Levy of normal tax and rates thereof. (Third Schedule).

6. (1) There shall be charged, levied and paid an income tax, known as “normal tax”, in respect of the taxable income, received by or accrued to or in favour of any person during the year of assessment commencing the first day of July 1975, and each succeeding year of assessment thereafter. (Amended A.11/1985.) (2) Notwithstanding the provisions of subsection (1), where the taxable income of any person who is in continuous employment with the same employer for any year of assessment, is derived solely from remuneration and the employee’ tax required to be deducted or withheld from such remuneration under the Second Schedule, has been deducted or withheld from such remuneration, the normal tax payable by him in respect of such year shall be an amount equal to the sum of the amount deducted or withheld from such remuneration as employees’ tax. (Added A.6/1994.) (3) The rates to be levied is the rates set out in the Third Schedule. (Amended A.6/1994.)

Meaning of gross income.

7. “Gross income” means the total amount whether in cash or otherwise received by or accrued to or in favour of any person, excluding such receipts or accruals of a capital nature as are not receipts or accruals referred to in paragraphs (a) to (l) herein in any year or period assessable under this Part from any source within Swaziland or deemed to be within Swaziland, and includes the following — (Amended A.9/1979.) (a) any amount so received or accrued by way of annuity; (aa) the full value of any debt (other than debt of a capital nature) which accrues in the year of assessment but becomes payable after the end of that year of assessment: (Added A.10/1991; Amended A.7/1992.) (b) any amount, including any voluntary award, so received or accrued in respect of services rendered or to be rendered; (Amended A.7/1989; A.6/2000.) (c) any amount so received or accrued in commutation of amounts due under any contract of employment or service; (d) any amount so received or accrued from another person as premium or like consideration paid by such other person for — (i) the use or occupation or the right of use or occupation of land or buildings; or (ii) the use or right of use of plant, machinery, equipment or vehicles; or (iii) the use or right of use of any motion picture film or any film or video tape or disc for use in connection with television or any sound recording or advertising matter connected with such motion picture film, film or video tape or disc; or (iv) the use or right of use of any patent, design, trade mark, copyright, or any model, pattern, plan, formula, or process or any property or right of a similar nature; or (v) the imparting of or the undertaking to impart any scientific, technical, industrial, or commercial knowledge or information for use in Swaziland, or the rendering of or the undertaking to render any assistance or service in connection with the application or utilisation of such knowledge or information; (Replaced A.9/1979.) (e) if in the case of any person to whom, in terms of any agreement relating to the grant to any other person of 288

the right of use or occupation of land or buildings, or by the cession of any rights under such agreement, there has accrued in any such year or period the right to have improvements effected on the land or to the buildings by any other person — (i) the amount stipulated in the agreement as the value of the improve-ments or as the amount to be expended on the improvements; or (ii) if no amount is so stipulated, an amount representing in the opinion of the Commissioner, the fair and reasonable value of the improvements; (f) the annual value of any benefit or advantage accruing by way of employment, including that of any quarters, board or residence:

Provided that in calculating the gross income of any person: (i) the value of any free medical attention or cash allowances for medical expenses provided for or paid to any employee or the holder of an office or appointment shall not be included; (ii) any free passage by rail, steamer or air provided for an employee or the holder of an office or appointment at the commencement of such employment, office or appointment shall not be included if the duration of such employment, office or appointment is two years or more or where it is less than two years, if such employment, office or appointment is not subject to renewal; (Amended A.6/2000.) (iii) any free passage by rail, road, steamer or air provided for an employee or the holder of an office or appointment shall, on termination of such employment, office or appointment, not be included if the employee or holder of such an office or appointment permanently returns to his place of recruitment; (Added A.6/2000.)

(Replaced A.6/1991.) (ff) For the purposes of paragraph (f), a taxable benefit shall be deemed to have been granted by an employer to his employee in respect of the employment contract between the employer and the employee, if — (a) a loan has been granted to the employee, whether by the em-ployer or by any other person by arrangement with the employ-er, and either no interest is payable by the employee on such loan or interest is payable by him thereon at a rate lower than the official rate of interest; or (b) the employer has paid any subsidy in respect of the amount of interest or capital repayments payable by the employee in terms of the loan; or (c) the employer has in respect of any loan granted to the employee by any lender, paid to such lender any subsidy, being an amount which, together with any interest payable by the employee on such loan, exceeds the amount of the interest which, if calculated at the official rate of interest, would have been payable on such loan; (d) for the purpose of this paragraph, “official rate of interest” means a rate of interest which the Minister may determine by written notice in the Gazette. (Added A.6/1994.) (g) (i) Any amount by which recoupments of capital expenditure which has been deducted under section 14(1)(m) or the corresponding pro-vision of; previous income tax law, exceeds the residual value of such capital expenditure calculated in terms of section 14(1)(m). (ii) For the purposes of this subsection — “residual value” means the difference between the cost of capital expenditure incurred in mining operations less the total of the allowances granted in terms of section 14(1)(m) in respect of such capital expenditure. (Replaced A.9/1988.)

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(h) all amounts allowed to be deducted or set off under the provisions of sec-tion 14(1) (except paragraphs (e), (j) and (u) thereof) or section 14(2) or the corresponding provisions of any previous income tax law, whether in the current or any previous year of assessment, which have been recovered or recouped during the current year of assessment: Provided that all amounts which in terms of this section are required to be included in the taxpayer’s income shall be deemed to have been received by or to have accrued to the taxpayer from a source within Swaziland not-withstanding that such amounts may have been recovered or recouped outside Swaziland; (i) any amount so received or accrued by way of alimony or allowance or maintenance under any judicial order or written agreement of separation or any order of divorce; (j) any amount so received or accrued by way of dividends or interest on debentures or debenture stock; (k) any amount by way of allowance so received or accrued to a public servant or a Member of Parliament, but excluding amounts paid or payable to such persons for reimbursive allowances in terms of General Orders or regulations relating to such allowances; (Replaced A.9/1979; A.11/1985.) (l) any amount which in terms of this Order is specifically required to be included in the taxpayer’s income. (Added A.9/1979.)

Normal tax rebates.

8. (1) In the case of persons other than companies the tax payable in terms of section 6 shall, save as is otherwise provided in this Order, be reduced by — (a) (Amended A.9/1988; A.6/1991; Deleted A.10/1991.) (b) (Amended A.6/1987; Repealed A.6/1991.) (c) an amount equal to ten per centum of the amount paid for each Emalangeni or part thereof in respect of — (i) the premium paid by a person during the year of assessment upon a policy under which that person, the spouse or child of that person is insured against death, accident or sickness: (Amended A.6/1991; Replaced A.10/1991.) Provided that no such reduction shall be allowed in respect of the premium paid upon any policy issued after the first of July, 1974 if such policy was not issued by the Swaziland Royal Insurance Corporation: Provided further that no reduction shall be made in respect of insurance under a policy if the amount paid as premium for such policy has been allowed as a reduction from the income of the taxpayer under section 14, or has been allowed in respect of income or similar tax paid by him in a foreign country; (ii) the fee or subscription paid by a person during the year of assessment to a provident fund or benefit fund; (Amended A.7/1992.) (iii) the contribution made by a person during the year of assessment as an employee to a fund established under any law relating to unemployment insurance: Provided that the total amount to be allowed as a reduction under this paragraph shall not exceed one hundred and eighty Emalangeni; and (Amended A.7/1989; A.6/1994.) (d) (Amended A.6/1987; Repealed A.6/1991.) (2) (Amended A.11/1985; Repealed A.6/1991.) (3) If the period of assessment is less than twelve months, the reductions under subsection (1)(a) shall be such amounts as bear to the full amount of the respective reductions provided for thereunder the same ratio as the period assessed bears to twelve months, unless in the case of any such period, terminating at the death of the taxpayer, or commencing at the death of the spouse of the taxpayer, the Commissioner in the special circumstances of the case, otherwise directs. (Amended A.6/1991.)

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Capitalised or credited income.

9. Income shall be deemed to have accrued to a person notwithstanding that such income has been invested, accumulated or otherwise capitalised by him or that such income has not been actually paid over to him but has been credited in account or reinvested or accumulated or capitalised or otherwise dealt with in his name or on his behalf, and a complete statement of all such income shall be included by any person in the returns rendered by him under this Order.

Taxation of income derived from farming. (First Schedule)

10. The taxable income of any person carrying on pastoral, agricultural, plantation or other farming operations shall, in so far as it is derived from such operations, be determined in accordance with this Order, but subject to the First Schedule. (Added K.O-I-C. 2/1977; Amended A.11/1985.)

Circumstances where certain amounts are deemed to be income in Swaziland.

11. (1) An amount shall be deemed to have accrued to any person from a source in Swaziland notwithstanding that it may have been recovered or recouped outside Swaziland whenever it has been received by or has accrued to or in favour of such person by virtue of — (a) any agreement made by such person in Swaziland for the sale of goods, whether such goods have been delivered or are to be delivered in or out of Swaziland; (b) any service rendered or work or labour done by such person in the carrying on in Swaziland of any trade, whether the payment for such service or work or labour is made or is to be made by a person resident in or out of Swaziland; (c) any service rendered by such person to, or work or labour done by, such person for or on behalf of the Government and in accordance with an agreement of employment with the Government notwithstanding that such service is rendered or that such work or labour is done outside Swaziland; (d) any pension or annuity granted to such person in respect of services performed in Swaziland wheresoever payment of such pension or annuity is made and wheresoever the funds from which payment is made are situate: Provided that if any pension or annuity is granted in respect of services performed partly in Swaziland and partly elsewhere only that part which bears to the whole amount of such pension or annuity the same ratio as the period of service in Swaziland bears to the total period of service in respect of which such pension or annuity was granted shall be deemed to have accrued from a source within Swaziland; (e) any business carried on by such person (being a person who is ordinarily resident in Swaziland, or a company which is incorporated, managed or controlled in Swaziland) as owner or charterer of any aircraft, wheresoever such aircraft may be operated; (f) any service rendered or work or labour done by such person, being a person ordinarily resident in Swaziland, as an officer or a member of the crew of any aircraft referred to in paragraph (e), notwithstanding that such service is rendered or such work or labour is done outside Swaziland, and wheresoever payment for such service or work or labour is made or is to be made; (g) the use or right of use in Swaziland of, or the grant of permission to use in Swaziland — (i) any patent design, trade mark, copyright, model, pattern, plan, formula, or process or any other property or right of a similar nature; or (ii) any motion picture film, or any film, or video tape or disc for use in connection with television, or any sound recording or advertising matter used or intended to be used in connection with such motion picture film, film or video tape or disc; (iii) any video or audio material transmitted by satellite, cable, optic fibre, or similar technology for use in connection with television or radio broadcasting, (Added A.6/2000.) wheresoever such thing or matter as is referred to in sub-paragraph (i), (ii) or (iii) has been produced or made, or such right of use or permission has been granted or payment for such use, right of use or grant, of

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permission has been made or is to be made, and whether such payment has been made or is to be made by a person resident in or out of Swaziland; (Added A.9/1979; amended A.6/2000.) (gg) the use of or the right to use, or the grant of permission to use in Swaziland of plant machinery, equipment or vehicles or any other movable property; (Added A.6/2000.) (h) the imparting of or the undertaking to impart any scientific, technical, industrial or commercial knowledge or information for use in Swaziland, or the rendering of or the undertaking to render, any assistance or service in connection with the application or utilization of such knowledge or information, wheresoever such knowledge or information has been obtained or such knowledge or information has been imparted or is to be imparted or such assistance or service has been rendered or is to be rendered or any such undertaking has been given, and whether payment for such knowledge, information, assistance, service or undertaking has been made or is to be made by a person resident in or out of Swaziland; (Added A.9/1979.) (i) a judicial order, written agreement of separation or an order of divorce, if the taxable income of such person’s spouse or former spouse has been reduced by such amount in terms of section 14(1)(x), wheresoever such judicial order or order of divorce was granted or such agreement was made or such amount is paid or payable and whether such person’s spouse or former spouse is resident in or out of Swaziland;(Added A.11/1982.) (j) a management charge paid by any person ordinarily resident or carrying on business in Swaziland. (Added A.6/2000.) (2) (Deleted A.10/1991.) (2)(bis) (Added A.11/1985; Amended A.5/1988; A.7/1989; A.6/1991; Deleted A.10/1991.) (3) Any income shall be deemed to have been received by the parent of any minor child, if by reason of any donation, settlement or other disposition made by such parent of such child — (a) it has been received by or accrued to or in favour of or has been deemed to have been received by or accrued to or in favour of such child or has been expended for the maintenance, education or benefit of such child; or (b) it has been accumulated for the benefit of such child. (4) Any income received by or accrued to or in favour of or deemed to have been received by or accrued to or in favour of any minor child of any person, by reason of any donation, settlement or other disposition made by any other person, shall be deemed to be the income of the parent of such minor child if such parent or his spouse has made a donation, settlement or other disposition or given some other consideration in favour directly or indirectly of such other person or his family. (5) If any person has made in any deed of donation, settlement or other disposition, a stipulation to the effect that the beneficiaries thereof, or some of them, shall not receive the income thereunder, or some portions of such income, until the happening of some event, whether fixed or contingent, so much of any income as would, in consequence of the donation, settlement or other disposition but for such stipulation, be received by or accrued to or in favour of or be deemed to be received by or accrued to or in favour of the beneficiaries, shall until the happening of such event, or the death of such person, whichever takes place first, be deemed to be the income of such person. (6) If any deed of donation, settlement or other disposition contains any stipulation that the right to receive any income thereby conferred may, under powers retained by the person by whom such right is conferred, be revoked or conferred upon another, so much of any income as, in consequence of donation, settlement or other disposition, is received by or accrues to or in favour of or is deemed to be received by or to accrue to or in favour of the person on whom such right is conferred, shall be deemed to be the income of the person by whom it is conferred, so long as he retains those powers. (7) Any amount received by or accrued to or in favour of any person ordinarily resident in Swaziland by way of interest upon any stocks or securities issued by any Government other than the Government of Swaziland, shall if such amount is not chargeable with income tax in such country of origin, by reason of the recipient not being domiciled or resident therein, be deemed to be income derived from a source within Swaziland:

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Provided that in the case of a person who was not ordinarily resident in Swaziland throughout the year of assessment, there shall not be added any such interest so received by or accrued to or in favour of any such person during such portion of such year as he was not so ordinarily resident. (8) So much of any amount, which has been paid by any person as an allowance or advance to a director, manager, employee or other person in respect of expenses of travelling, entertainment or other service, as the Commissioner is not satisfied was actually expended by the recipient on such travelling, entertainment or in the performance of such service, shall be deemed to be part of the taxable income of the recipient. (9) Any interest which has been received by, or has accrued to, a person who is ordinarily resident in Swaziland in respect of a loan to, or deposit in a building society other than the building society registered under the provisions of the Building Societies Act, No. 1 of 1962, and carrying on business in Swaziland, or any dividend or share of profits distributed by such society which has been received by or has accrued to a person ordinarily resident in Swaziland, shall be deemed to have been derived from a source within Swaziland. (9A) It is further provided that — (a) any interest received by or accrued to a person who is ordinarily resident or carrying on business in Swaziland from a source outside Swaziland arising out of any remittance from Swaziland made subsequent to the coming into operation of this provision, shall be deemed to be from a source within Swaziland notwithstanding that it may have been recovered or recouped outside Swaziland, unless the interest is effectively connected with a business carried on by the person through a branch in the other country; (b) where as a result of subparagraph (a) applying, an amount of interests-is included in the gross income of a person ordinarily resident or carrying on business in Swaziland, that person shall be allowed a credit for any foreign tax paid by the perion in respect of the interest, and this credit shall be applied against the person’s liability for Swaziland tax on the interest; and (c) the amount of the credit allowed under subparagraph (b) is limited to the Swaziland tax payable in respect of the interest income. (Added A.6/2000.) (10) So much of any amount which has been paid by a company to or otherwise made available for the personal use of a shareholder or director of such company from the com-pany’s undistributed profits, reserves or other assets by way of loan, and which amount was not repaid to the company within the year such loan or advantage was obtained, shall be deemed to be part of the taxable income of such shareholder or director for that year: Provided that this subsection shall not apply to a loan paid to or otherwise made available for use by a shareholder or director which in the opinion of the Commissioner, was made for a purpose directly connected with the business of the company. (Added A.9/1979.) (11) (a) There shall be taken into account, in the determination of the taxable income derived by any person, during any year of assessment, from carrying on any trade (other than farming), the value of all trading stock held and not disposed of by him (herein-after referred to as “the value of trading stock held”) at the beginning and end of each year of assessment. (b) The value of trading stock by any person at the beginning of any tax year shall be deemed to be — (i) where he carried on his trade on the last day of the previous year of assessment, the value of trading stock held on that date; or (ii) where he commenced the trade during the tax year, the cost to him of any stock acquired prior to the commencement of the trade. (c) The value of trading stock held at the end of a year of assessment shall be deemed to be the cost to the person carrying of the trade less such amount, if any, as in the opinion of the Commissioner, is reasonable as representing the amount by which the value of such stock has been diminished because of damage, deterioration, obsolescence or other cause. (d) For the purposes of this subsection, the cost of any trading stock in relation to any date shall be — (i) the cost incurred in acquiring such trading stock; and (ii) any further costs incurred up to such date in getting such trading stock into its then existing condition or location.

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(e) Where any trading stock has been acquired by any person — (i) for a consideration which cannot be valued; or (ii) otherwise than by way of a transaction at arms length, such trading stock shall be deemed to have been acquired at a cost equal to the price which, in the opinion of the Commissioner, was the current market price of such trading stock on the date of acquisition. For the purpose if this subsection “trading stock” includes anything produced, manufactured, purchased or otherwise acquired for the purposes of manufacture, sale or exchange, or the proceeds of the disposal which forms or will form, any part of gross income and consumable stores. (Added A.11/1982; Amended A.11/1985.)

Exemptions from normal tax.

12. (1) There shall be exempt from normal tax — (a) the receipts and accruals of: (i) life assurance business (including receipts and accruals from invest-ments) by the Swaziland Royal Insurance Corporation and other insurance companies; (ii) insurance business other than life assurance business of the Swazi-land Royal Insurance Corporation to the extent that they are not distributed to shareholders and until such time as the amount of the general reserve fund for the first time is equal to twice the amount of the authorised share capital of the Corporation in terms of section 5 of the Swaziland Royal Insurance Corporation Order, No. 32 of 1973; (iii) (Amended A.6/1994; deleted A.6/2000.) (iv) a pension fund, a retirement annuity fund, a benefit fund or a provident fund; Provided that the provisions of this paragraph shall not be construed as requiring the taxable income of such company, society or association derived from investments to be determined at an amount greater than an amount determined to the satisfaction of the Commissioner as representing the taxable income on which such company, society or association would have been taxable under this Order if the exemption conferred by this paragraph had not been applicable; (Added A.6/1994.) (v) (Deleted A.6/2000.) (vi) any company, society or other association of persons, whether or not registered under any law, the profits or gains of which, other than profits or gains from investments, are derived solely from trans-actions with or on behalf of its individual members, and the constitution of which does not admit of the distribution of its profits or gains to any persons other than the members with whom or on whose behalf the transactions took place, and does not confer upon any person any benefit other than benefits accruing to that person from transactions with or on behalf of such person, except as regards any receipts or accruals from investments by any such company, society, or association of persons; and (vii) any association which is in the opinion of the Commissioner an amateur sporting association, except as regards any receipts or accruals from investments; (viii) all ecclesiastical, charitable and educational institutions of a public character; (ix) a trade union, an employees’ association or an association of employers registered under the Industrial Relations Act of 1980. (Deleted A.11/1985; Added A.6/1994.) (b) the income of any person entitled to privileges under the Diplomatic Privileges Act No. 18 of 1968 to the extent provided in such Act; (c) the salaries and emoluments of any person in respect of services rendered to the Government of any country other than Swaziland if that person is not ordinarily resident in Swaziland or is ordinarily resident solely for the purpose of performing such services; (d) war pensions or gratuities;

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(e) dividends received by or accrued to or in favour of — (i) any person not ordinarily resident or carrying on business in Swaziland; (ii) the estate of any deceased person who at the date of his death was not ordinarily resident or carrying on business in Swaziland, if, but for this exemption, such estate would have been liable for normal tax in respect of such dividend; and (iii) any company; (ee) so much of the total of dividends as does not exceed two thousand Emalangeni received by or accrued to or in favour of an individual in any year of assessment from any company or companies whether or not such company or companies are listed with the Swaziland Stock Exchange; Provided that any amount of dividends in excess of two thousand Emalangeni, shall be charged to tax under section 6; (Added A.6/1991; Amended A.10/1991.) (f) so much of any amount received by or accrued to any person as is proved to the satisfaction of the Commissioner to be a bona fide bursary granted to enable or assist such person to study at a recognised educational or research institution; (g) any amount received by or accrued to any employee on bona fide termination of employment by reason of a written agreement of employment or of any law in force in Swaziland, by way of bonus or gratuity specified in such written agreement in respect of services rendered or performed prior to 1 July 2001: (Amended A.6/2000.) Provided that: (i) the period of the agreement of employment is not less than two years; or (ii) if the period of the agreement is less than two years, the employee shall not enter into another agreement of employment with the same employer after the termination of his employment; and Provided further that such amount shall not exceed twenty-five per centum of the total amount of the actual salary received by the employee reckoned from the date of such written agreement in respect of and during the period of such employment: Provided further that the payment of such amount in respect of services rendered or performed prior to 1st July, 2000 shall not be subject to normal tax notwithstanding that such payment is made prior to the bona fide termination of such written agreement. (Added A.6/2000.) (Replaced A.10/1991.) (h) any interest received by or accrued to any person neither ordinarily resident nor carrying on business in Swaziland from stock or securities issued by the Government or any local authority in Swaziland, the Swaziland Railway Board, the Swaziland Electricity Board or any other parastatal or statutory corporation approved by the Minister: Provided that, if in the case of any such stock or securities issued in respect of a loan raised in a country outside Swaziland the Minister has given a written undertaking that the interest therefrom received by or accruing to any person not ordinarily resident in Swaziland shall be exempt from tax in Swaziland, the interest received by or accruing to such person from any such stock or securities acquired by him outside Swaziland shall be exempt from that tax, notwithstanding that he carries on business in Swaziland; (i) any interest received by or accruing to any person not ordinarily resident in Swaziland form any loan made to the Ngwenyama in trust for the Swazi Nation; (j) any amount received by or accruing to an employee on bona fide termination of employment in respect of — (i) commutation of a pension payable from a pension fund; (ii) amounts due from a provident fund or benefit fund;

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(iii) any amount payable as severance allowance and, or, notice pay under the Employment Act; (Added A.11/1985; Amended A.10/1991; Replaced A.6/1996.) (jj) So much of the total amount being a lump sum referred to in section 7 of the meaning of “gross income” as does not exceed ten thousand Emalangeni received by or accrued to any person upon or because of the termination or impending termination of such persons services due to his employer having ceased carrying on the trade in respect of which such person was employed or to such person having become redundant in consequence of this employer having effected a general reduction in personnel or a reduction of personnel of a particular class; (Added A.6/1996.) (k) any amount received in commutation of a retirement annuity; (l) any amount (other than his actual salary) received by or accrued to a public servant which the Government has undertaken shall be exempt from normal tax by the terms of its written agreement with such servant and any amount from whatsoever cause arising received by or accrued to a public servant which the Government has undertaken shall be exempt from normal tax by the terms of its written agreement with the Government of another state; (m) any amount received by or accrued to any person in respect of services rendered in Swaziland which the Government has undertaken shall be exempt from normal tax by the terms of its written agreement with the Government of another state or with an international or world organisation or body; (n) any allowances additional to salary payable to any public servant or representative of the Government in respect of his appointment or office if such allowances are payable and his duties are performed outside Swaziland; (o) (deleted A.6/2000.) (p) (Amended K.O-I-C. 1/1976; A.9/1979; A.11/1982; A.11/1985; A.6/1991; deleted A.6/2000.) (q) (Amended A.11/1982; A.11/1985; deleted A.6/2000.) (qq) so much of annual interest as does not exceed one thousand Emalangeni received by or accrued to an individual in any year of assessment from deposits in a financial institution licensed under the Financial Institutions (Consolidation) Order, 1975 or in a building society registered under the Building Societies Act, 1962 or the Swaziland Development and Savings Bank, established under Order No. 49 of 1973, and carrying on business in Swaziland. (Added A.6/1991; amended A.6/2000.) (r) any interest and other charges on any loan which the Government has in terms of a written undertaking concluded subsequent to the 1st December, 1977 exempted or undertaken to exempt from tax to the extent specified in such undertaking; (Added K.O-I-C. 6/1978.) (s) (i) income derived by a person from farming operations conducted by him solely as an individual, mainly on land held by the Ngwenyama personally or in trust for the Swazi Nation insofar as such land is not held by such person on a lease given by the Swazi Nation; (ii) for the purpose of the sub-paragraph (i), the word “lease” means any document signed by a person seeking possession of the land and the Swazi Nation, in accordance with the requirements laid down by the Swazi Nation; (Added A.11/1985.) (t) gross income received by or accrued to any person not ordinarily resident in Swaziland where such gross income is liable to non-residents’ tax on entertainment and sports chargeable under section 32A of this Order; (Added A.11/1985.) (u) any royalty or management charge received by or accrued to any person not ordinarily resident or carrying on business in Swaziland which is subject to tax under section 32B of this Order; (Added A.6/2000.) (v) the first twenty-four thousand Emalangeni (E24,000.00) of any amount, other than an amount which section 12(1)(j) applies, received by or accrued to an employee on bona fide termination of employment by reason of the employee having reached the retiring age or the termination of employment of such employee is due to ill-health or infirmity. (Added A.6/2000.)

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(2) The exemptions provided by subsections (1)(a)(i) to (ix) inclusive shall not extend to the salaries, wages, allowances or pensions of persons employed by any such society, institution, company, board or business although they may be paid wholly or in part out of the income, revenue or funds thereof. (Amended A.6/1994.) (3) There shall be exempt from normal tax every person (excepting company) who is ordinarily resident in Swaziland whose taxable income does not exceed the amount qualifying for exemption under the Third Schedule in any year of assessment. (Amended A.11/1982; A.7/1989; A.6/1991; Replaced A.10/1991; A.7/1992; A.6/1994.) (4) (Replaced A.11/1982; Amended A.11/1985; A.7/1989; A.6/1991; Deleted A.10/1991.) (5) (a) Where a new business engaged in a manufacturing industry which is not already in existence in Swaziland or with effect from 1st July, 1987, any business which is predominantly engaged in exporting goods from Swaziland derives taxable income from such manufacturing industry, such taxable income shall, for a period of five years of assessment, as from the date of commencement of such business, be exempt from normal tax provided that the cumulative taxable income derived from such industry less cumulative remuneration paid to his employees who are citizens of Swaziland does not exceed one hundred and fifty per cent of the value of the assets owned by the owner of such business as at the end of each year of assessment and employed in such business. (Added A.11/1985; Amended A.9/1988.) (b) In paragraph (a), where the cumulative taxable income derived from such business less the cumulative remuneration paid to his employees who are citizens of Swaziland exceeds one hundred and fifty percent of the value of the assets owned by the owner of the business at the end of each year of assessment and employed in such business, such excess shall be deemed to be the income of such owner and shall be liable to normal tax in accordance with this Order: Provided that where such excess is more than the taxable income derived by the business from such industry in any year, tax for that year shall be levied on such taxable income as computed under section 14. (Added A.11/1985.)

Business extending beyond Swaziland. 13. (1) In the case of persons whose business extends to any other country, the taxable income shall be the sum which bears the same proportion to the whole net profits as his assets in Swaziland bear to the total assets of such person: Provided that if the Commissioner or the taxpayer deems such method of estimating the income for taxation to be inequitable or inexpedient, either of them may claim the right to an assessment on the actual profits derived from sources in Swaziland. (2) For the purpose of subsection (1) assets means those “assets” actually employed to produce income the profits from which are to be apportioned.

Determination of taxable income. 14. (1) For the purpose of ascertaining the taxable income of any person there shall be deducted from the income of such person — (a) expenditure and loss actually incurred in Swaziland by the taxpayer in the production of his income, including such expenses incurred outside Swaziland in the production of the taxable income as the Commissioner may allow, provided that such expenditure or loss are not of a capital nature; (Amended A.11/1985.) (b) expenditure actually incurred by the taxpayer during the year of assessment for the repairs of property occupied for the purpose of trade or in respect of which income is receivable and sums so expended for the repair of machinery, implements, utensils and articles employed by the taxpayer for the purposes of his trade; (c) such sum as the Commissioner may think just and reasonable as representing the diminished value by reason of wear and tear during the year of assessment of any plant, machinery, implements, utensils and articles used by the taxpayer for the purposes of his trade:

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Provided that in the case of plant, machinery, implements, utensils and articles which are let by any taxpayer and which are brought into use by the lessee, thereof for the purposes of the lessee’s trade, the Commissioner may, if he considers it just and reasonable allow during the year of assessment wear and tear on an equal annual instalment basis over the estimated life of such plant, machinery, implements, utensils and articles, but the value of any machinery or plant used by the taxpayer for the purposes of his business shall be reduced by the amount of deduction which may be made under paragraph (e)(i); (Added K.O-I-C. 19/1976; Replaced A.7/1989.) (d) an amount equal to four per centum of the cost to the taxpayer of any industrial building and any improvements thereto (other than repairs) and other than buildings provided for in section 16(4)(a): (Replaced A.9/1988.) Provided that the aggregate of the deductions under this paragraph and the corresponding provisions of the repealed enactments together with any deduction under paragraph (f) shall not exceed the cost to the taxpayer of such industrial building and improvements; (Commenced:1st July, 1990.) (e) in respect of: (i) machinery or plant which was brought into use by the taxpayer for the first time for the purposes of his business for use by him directly in the process of manufacture, or brought into use by a taxpayer engaged in the hotel industry, or which was let by a taxpayer and which is brought into use by the lessee thereof for the purpose of the lessee’s trade and is used by the lessee directly in a process of manufacture, an allowance (to be called “machinery initial allowance”) for the year of assessment during which such machinery or plant is first used equal to fifty per cent of the cost thereof incurred by the taxpayer on or after the first day of July, 1985; (Amended A.9/1979; A.9/1988.) Provided that where such plant and machinery is brought into use by a taxpayer engaged in the hotel industry, the initial allowance shall apply with effect from 1st July, 1988; (Added A.9/1988.) (ii) infrastructural machinery, plant or facilities, including transmission equipment, lines and pipes used in the provision of infrastructural services which was brought into use by the tax payer for the first time for the purposes of the taxpayer’s business, an allowance (to be known as “infrastructural initial allowance”) for the year of assessment during which such infrastructural machinery, plant or facilities is first used equal to fifty percent of the cost incurred by the taxpayer on or after the 1st July, 2000: Provided that the amount equivalent to the amount of any outstanding balance of any loans procured for the provision of such infrastructural assets as at the date of coming into operation of this provision shall be deemed to be the value of such assets brought into use by the taxpayer for the first time; (Added A.6/2000.) (iii) a building other than hotel buildings and improvements brought into use after 1st July, 1988, if such a building was wholly or mainly used by the taxpayer for the purpose of housing machinery or plant referred to in sub-paragraph (i), or if such building was let by the taxpayer to an occupier who so used it for purposes of the occupier’s business, an allowance (to be called a “building initial allowance”) for the year of assessment during which such building is first used equal to fifty per cent of the actual cost thereof incurred by the taxpayer on or after the first day of July, 1985: (Amended K.O-I-C. 19/1976; A.9/1979; A.9/1988.) Provided that in the case of machinery or plant which at the time of installation is not new or unused, the allowance shall only be deducted if the machinery or plant is installed in a building referred to in sub-paragraph (ii), does not replace other machinery or plant and has not previously been used in Swaziland, in which case such allowance shall be calculated on an amount which in the opinion of the Commissioner represents the depreciated value of the machinery or plant based on its original actual cost: Provided further that in the case of a building, referred to in sub-paragraph (ii), the allowance shall only be deducted if the building is so used for the purpose of housing machinery or plant which at 298

the time of installation, is new or unused or has not previously been used in Swaziland and which does not replace other machinery or plant; (iv) for the purpose of this paragraph — (A) the expression “machinery or plant” does not include motor vehicles intended or adapted for use or capable of being used on roads; and (B) “infrastructural service” means the provision of electricity, water, sewer, rail facilities or telecommunications by a taxpayer whose main business is to provide such services; (Added A.9/1979; amended A.6/2000.) (v) the allowances referred in sub-paragraphs (i) and (ii) shall not be given if the taxpayer elects otherwise; (Replaced A.11/1985; amended A.6/2000.) (f) an allowance in respect of any machinery, implements, utensils and articles used by the taxpayer for the purpose of his trade which have been scrapped by such taxpayer during the year of assessment, such allowance to be the difference between the original cost to such taxpayer of such machinery, implements, utensils or articles and the total amount arrived at by adding all the allowances made in respect thereof under paragraphs (c) and (e) to any amount or the value of any advantage accruing to the taxpayer in respect of the sale or other disposal of such machinery, implements, utensils and articles; (Replaced A.11/1985.) (g) in the case of a taxpayer (excluding a taxpayer who derives income from the sale of immovable property to persons who are not employed by him) who, during any year of assessment, incurs expenditure in connection with the erection of any dwelling and who satisfies the Commissioner that such dwelling will be occupied exclusively by persons, or the household of persons, who are his employees (other than employees engaged in a managerial or supervisory capacity) and are employed by him for the purposes of his own business in a process of manufacture, an allowance in respect of the first year during which such expenditure was incurred equal to twenty per centum of such expenditure and thereafter for the next succeeding eight years an allowance during each year of assessment of ten per centum thereof: Provided that: (i) such allowance in respect of any one dwelling shall not exceed the sum of twelve thousand Emalangeni for the first year and the sum of six thousand Emalangeni in respect of each of the succeeding eight years; and (Amended A.7/1989; A.7/1992.) (ii) the expenditure on which such allowance is made shall not include the cost of the land on which such dwelling is erected; (Replaced A.11/1985.) (h) in the case of a taxpayer who, incurs any capital expenditure in connection with the erection by him of a new hotel or the effecting of any beneficial improvements to the amenities of an existing hotel, a hotel initial allowance for the year of assessment during which such new hotel or the beneficial improvements into an existing hotel are first used, equal to fifty per centum of the actual cost incurred by the taxpayer on or after the 1st of July, 1988, together with an annual allowance of four per centum of such expenditure in respect of that year and each of the exceeding years, so that the total allowances for all years of assessment given under this paragraph and under the corresponding provisions of the repealed enactments in respect of such expenditure incurred in any year of assessment shall not exceed the expenditure so incurred: (Replaced A.9/1988.) Provided that: (i) any expenditure in respect of which an allowance in terms of this paragraph has been made shall not qualify for an allowance under any other provision of this Order; and (Amended A.9/1988.) (ii) in so far as the effecting of improvements is concerned, the Minister shall, by certificate issued under his hand, have certified them as being beneficial improvements; (Replaced A.11/1985.) (i) any sum contributed during the year of assessment by way of current contribution to any pension fund by any person holding any appointment, office or employment: Provided that the deductions to be allowed in respect of contributions to a pension fund not established by law shall not exceed the sum of one thousand and seven hundred and fifty Emalangeni;

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(Replaced A.11/1985; Amended A.7/1989; A.10/1991.) (j) so much of the total current contributions to any retirement annuity fund made during the year of assessment by any person as a member of the fund as does not in the case of the tax payer exceed the greatest of — (i) fifteen per centum of the taxable income accruing to the tax payer in respect of trade carried out by the tax payer; provided that the maximum allowable deductions in each case shall not exceed an amount of five thousand Emalangeni; or (ii) an amount of three thousand five hundred Emalangeni less contributions made by the taxpayer to a pensions fund; or (iii) an amount of one thousand seven hundred and fifty Emalangeni; (Replaced A.11/1985; Amended A.7/1989; Replaced A.10/1991.) (k) any sum contributed by the employer less the employees contribution during the year of assessment to any pension fund, provided fund or benefit fund established for the benefit of the employees of that employer as does not exceed twenty per centum: (Amended A.6/1991.) Provided that — (i) if the contributions including any lump sum payments made by the employer in respect of an employee during the year of assessment to such funds exceeds twenty per centum and the Commissioner is satisfied that the aggregate of such contributions and the total remunerations accruing to that employee during the year of assessment in respect of his employment by such employer is excessive or unjustifiable in relation to the value of the services rendered by him, and having regard to other benefits, if any, derived by him from his employment by the employer only so much of such contributions as appear to the Commissioner to be reasonable, but not less than an amount equal to twenty per centum of the total remuneration accruing to that employee during the year of assessment in respect of his employment as the Commissioner considers to be fair and reasonable in relation to the value of the services rendered by him and having regard to other benefits, if any, derived by him from his employment by the employer shall be allowed to be deducted under this paragraph; (Replaced A.6/1991.) (ii) in respect of a lump sum contribution, the Commissioner may determine that such sum shall be deducted in a series of annual instalments, so that only a portion thereof is deducted in the year of assessment in which it is contributed, and the residue in such sub-sequent year of assessment, and such proportions as the Commissioner may determine, until the contributions are extinguished; (Replaced A.11/1985.) (l) any amount paid by way of annuity during the year of assessment by any taxpayer — (i) to a former employee who has retired from the taxpayer’s employ on grounds of old age, ill-health or infirmity; or (ii) to any person who is dependent for his maintenance upon a former employee or where such former employee is deceased, was so dependent immediately prior to his death: Provided that such deduction shall not exceed in respect of the person so dependant on any one retired or deceased employee the sum of six thousand Emalangeni; (Amended A.7/1989.) (Replaced A.11/1985.) (m) in respect of income from mining operations an amount to be ascertained under section 16 in lieu of the allowances in paragraphs (c), (e), (f), (g), and (n); (Replaced A.11/1985; A.9/1988.) (n) an allowance in respect of any premium or consideration the nature of a premium paid by any taxpayer for the right of use or occupation of land or buildings, or for the right of use of any plant or machinery, or of any patent, design, trade mark or copyright or any other property which, in the opinion of the

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Commissioner, is of a similar nature, if the property is used or occupied for the production of income or income is derived therefrom: Provided that — (i) such allowance shall not exceed for any one year such portion of the amount of the premium or consideration so paid as is equal to such amount divided by the number of years for which the taxpayer is entitled to the use or occupation, or one twenty-fifth of such amount, whichever is the greater; and (ii) if the taxpayer is entitled to such use or occupation for an indefinite period he shall be deemed, for the purposes of this paragraph, to be entitled to such use or occupation for such period as, in the opinion of the Commissioner, represents the probable duration of such use or occupation; (Replaced A.11/1985.) (o) an allowance in respect of any expenditure actually incurred by the taxpayer in pursuance of an obligation to effect improvements on land or to buildings incurred under an agreement whereby the right of use or occupation of the land or buildings is granted by any other persons, if the land or buildings are used or occupied for the production of income or income is derived there-from: Provided that — (i) the aggregate of the allowance under this paragraph shall not exceed any amount stipulated in the agreement as the value of the improvements or as the amount to be expended on the improvements or, if no amount is so stipulated, an amount representing, in the opinion of the Commissioner, the fair and reasonable value of the improvements; (ii) any such allowance shall not exceed for any one year such portion of the aggregate of the allowances under this paragraph as is equal to such aggregate divided by the number of years (calculated from the date on which the improvements are completed) for which the taxpayer is entitled to the use or occupation, or one twenty-fifth of the said aggregate, whichever is the greater; and (iii) if the taxpayer is entitled to such use or occupation for an indefinite period he shall be deemed, for the purpose of this paragraph to be entitled to such use or occupation for such period as, in the opinion of the Commissioner, represents the probable duration of such use or occupation; (Replaced A.11/1985.) (p) such allowance in respect of any amounts included in the taxpayer’s gross income under section 7(d) or (e), as the Commissioner may deem reasonable, having regard to any special circumstances of the case, and in case of an amount so included under section 7(e) to the original period for which the right of use or occupation was granted; (Replaced A.11/1985.) (q) the amount of any debts due to the taxpayer to the extent to which they are proved to the satisfaction of the Commissioner, to be bad, provided such amount is included in the current year of assessment or was included in previous years of assessment in the taxpayer’s income; (Replaced A.11/1985.) (r) such an allowance as may be made each year by the Commissioner in respect of such debts due to the taxpayer as he considers to be doubtful: Provided that such allowance shall be included in the income of the taxpayer in the following year of assessment; (Replaced A.11/1985.) (s) any interest payable on loans made to the taxpayer, including interest on debentures or debenture stock if the Commissioner is satisfied that the loan was employed in production of income or for the purposes of the trade of the taxpayer:

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Provided that the Commissioner shall, if the rate of interest is, in his opinion excessive, determine the deduction to be allowed in accordance with such rate of interest as he considers just and reasonable in the circumstances; (Replaced A.11/1985.) (t) expenditure incurred during the year of assessment by any taxpayer — (i) for the purpose of scientific research undertaken by him for the development of his business, if such expenditure is not of a capital nature; or (ii) by way of contribution to any association, institute, college or university, to be used in scientific research relating to the taxpayer’s own business if the Commissioner is satisfied that such contribution will be used in such research; (iii) by way of contributions, grants or donations to any of his employees to assist such employee in further training in his particular professional field at the University College of Swaziland, or at any other approved University or institution for the purpose of securing a recognised qualification; (iv) by way of contributions to an improved scheme; (Added A.5/1988.) (v) by way of contributions, grants or donations not exceeding E25 000, made to a professional body, established by law, for educational or training purposes and which the Commissioner is satisfied were paid during the year of assessment; (Added A.5/1988; Amended A.7/1992.) (Added A.11/1985.) (u) (Amended A.9/1979; Replaced A.11/1985; Amended A.6/1987; A.7/1989; Deleted A.10/1991.) (v) any grant made to the Government for the purpose of erecting school or hospital buildings: Provided that there shall be deducted in the year of assessment in which such grant is made such portion and in subsequent years of assessment such other portions of the residue, as the Commissioner may determine; (Added A.11/1985.) (vv) any grant made to the University of Swaziland for the purpose of the University undertaking capital projects in the form of buildings, fittings, furniture as well as other items associated with capital assets needed for the development of the University; (Added A.10/1991.) (w) any amount paid by way of alimony or allowance under any judicial order or written agreement of separation or under any order of divorce: Provided that if the law applying to any such order or agreement is the law of a country other than Swaziland the deduction under this paragraph shall be reduced by the amount of any income of the taxpayer which is not subject to tax in Swaziland; (Added A.11/1985.) (x) in addition to any amount otherwise deductible under this section an allowance in respect of training expenses to be ascertained under section 18; (Added A.11/1985.) (y) in addition to any amount otherwise deductible under this section, an amount equal to: (i) thirty-three per centum of the approved export promotion expenditure incurred during the year preceding the year of assessment by an approved company in the handicraft and cottage industry sector; or (ii) fifty per centum of the approved export promotion expenditure incurred during the year preceding the year of assessment by an approved trading house: Provided that no such deduction shall be allowed unless the Commissioner has been satisfied by proof in such manner as he may prescribe that there has been an increase in the volume of export of the products of such approved company or trading house in respect of the year following the year in which the expenditure was incurred;

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(Added A.7/1989; Amended A.7/1992.) (z) any contribution, whether in cash or in kind, made during the year of assessment towards any national disaster scheme established by the Government: Provided that this paragraph shall apply to any contribution made by any person during the immediately preceding year of assessment towards the Disaster Relief Fund established with effect from 1st April, 1992 by Legal Notice No. 56 of 1992. (Added A.7/1992.) (2) There shall be set off — (a) any balance of assessed loss incurred by the taxpayer in any previous year which has been carried forward from the preceding year of assessment: Provided that — (i) no person whose estate has been voluntarily or compulsorily sequestrated shall, unless the order of sequestration has been set aside, be entitled to carry forward any assessed loss incurred prior to the date of sequestration; (ii) the balance of assessed loss shall be reduced by the amount or value of any benefit received by or accruing to a person resulting from a concession granted by or a compromise made with his creditors whereby his liabilities to them have been reduced or extinguished, provided such liabilities arose in the ordinary course of trade; (b) any assessed loss incurred by the taxpayer during the same year of assessment in carrying on in Swaziland any other trade either alone or in partnership with others, otherwise than as a member of a company the capital whereof is divided into shares. (3) For the purpose of subsection (2) “assessed loss” means any amount, as established to the satisfaction of the Commissioner, by which the deductions admissible under this section exceed the income in respect of which they are so admissible. (4) Subsection (1)(a) and (2)(b) shall, subject to subsection (5) hereof, mutatis mutandis apply in relation to any income derived by any person in the form of dividends. (5) In respect of expenditure and losses not of a capital nature incurred by any person, other than a company, in the production of his income from dividends, the amount to be deducted under subsections (1)(a) and (2)(b) as applied by subsection (4) hereof shall be an amount which bears to the expenditure and losses, which but for this subsection would have been allowed to be deducted, the same ratio as the amount of such dividends as calculated after allowing the deduction under subsection (6) bears to the amount of such dividends as calculated before allowing such deduction. (6) In respect of listing fees payable in the year of assessment by a company in connection with the floatation of its shares on the Swaziland Stock Exchange to a Stock Broking Company licensed under the Financial Institutions (Consolidation) Order 1975, so much of the total amount of such listing fees does not exceed one third of the total fees in the year in which such listing fees become payable and the balance over the next two years succeeding the year in which such listing fees become payable. (Replaced A.6/1991.)

House ownership and improvement interest allowance.

14A. (1) Where in any year of assessment a taxpayer resident in Swaziland pays interest, at a rate which the Commissioner is satisfied does not differ substantially from normal commercial rates operating in that year of assessment on a loan, mortgage or similar financial arrangement repayable over a fixed period of time made to that taxpayer by — (a) a building society; (b) any financial institution recognised by the Commissioner as an institution whose business includes the lending of moneys for the purchase or improvement of residential property; or (c) any authority or person recognised by the Commissioner as duly authorised by law to engage in the establishment or development of townships or in the selling of plots for residential purposes,

303 to enable that taxpayer to purchase, build or improve his principal private residence in Swaziland, and the payments of such interest are borne out of the income of the taxpayer, the taxpayer shall be entitled to a deduction in respect of such interest in accordance with subsection (2) of this section. (Amended A6/1994; A.6/2000.) (2) The amount deductable from the gross income of the taxpayer in any year of assessment shall, where the gross income of the taxpayer — (a) does not exceed fifteen thousand Emalangeni, be two hundred per centum of the interest paid during that year of assessment; (b) exceeds fifteen thousand Emalangeni but does not exceed sixty thousand Emalangeni, be one hundred per centum of the interest paid during that year of assessment; or (c) exceeds sixty thousand Emalangeni, be fifty per centum of the interest paid during that year of assessment: Provided that the interest for the purposes of this subsection shall be limited to only such interest payable on so much of the amount of the loan, mortgage or similar financial arrangement as does not exceed sixty thousand Emalangeni or nine thousand Emalangeni, whichever is the lower.

(Amended A.7/1992.) (3) (Deleted A.6/1994.) (Added A.7/1989; Amended A.6/1994.)

Deductions not allowable.

15. Notwithstanding any other provisions of this Order no deduction shall in any case be made in respect of any of the following matters — (a) the cost incurred in the maintenance of any taxpayer, his family or establishment; (b) domestic or private expenses; (c) any loss or expense which is recoverable under any insurance contract or indemnity; (d) normal tax; (e) income carried to any reserve fund or capitalised in any way; (f) any expenses incurred in respect of any amounts received or accrued which are not included in income; (g) as regards income derived from any trade — (i) any money not wholly or exclusively laid out or expended for the purpose of trade; (ii) the rent or value or cost of repairs to any premises not occupied for the purposes of trade, or of any dwelling-house or domestic premises except such part thereof as may be occupied for such purposes; (iii) any interest which might have been made on any capital employed in trade.

Calculation of capital expenditure allowance in connection with mining operations.

16. (1) Excepting in cases where the taxpayer and the Government have, in writing, agreed otherwise, the amount to be deducted each year, under section 14(1)(m) in respect of income from mining operations, shall be the capital expenditure incurred in the year of assessment after subtracting therefrom any recoupments received during the year from capital expenditure (irrespective of the date when such capital expenditure was originally incurred). (2) If separate and distinct mining operations are carried on in mines that are not contiguous, the allowance for capital expenditure shall be computed separately for each mine. (3) The amount of capital expenditure determined under subsection (1) in respect of any year of assessment in relation to any one mine shall not exceed the taxable income (as determined before the deduction of any amount allowable under section 14(1)(m) derived by the taxpayer from mining on that mine and any amount by which such capital expenditure would, but for the provisions of this subsection have exceeded such taxable income as so determined, shall be carried forward and be deemed to be an amount of capital expenditure incurred during the next succeeding year of assessment in respect of that mine. 304

(4) For the purposes of this section and section 17 “capital expenditure” means expenditure on — (a) shaft sinking, building, works or equipment including any renewals or replacements of equipment; (b) development, general administration and management (including any interest payable on loans utilised for mining purposes) prior to the commencement of production or during any period of non-production but excluding the cost of acquiring mineral rights; (c) “expenditure” means net expenditure after taking into account any rebates, recoupments or returns of expenditure; (d) “expenditure on shaft sinking” includes the expenditure on sumps, pump chambers, stations and or bins, accessory to a shaft; (5) Subsections (1) to (4) are deemed to have come into effect from 1st July, 1983. (Replaced A.9/1988.)

Calculation of capital expenditure on change of ownership of a mining property.

17. (1) If any change of ownership in mining property takes place the Commissioner shall allow the effective value to the new owner, at the time the change of ownership takes place, of the preliminary surveys, boreholes, shafts, development and equipment included in the assets passing by such change of ownership to rank as capital expenditure for redemption by such new owner: Provided that if, in a case in which consideration is given, the effective value of the assets so passing exceeds the consideration, the amount allowed to rank for redemption by the new owner shall be such proportion of the consideration as such effective values of the preliminary surveys, boreholes, shafts, development and equipment bears to the effective value of all the assets passing. (2) The amount allowed to rank as capital expenditure for redemption by the new owner shall for the purposes of section 7(g) be deemed to be a recoupment of capital expenditure by the person from whom ownership was acquired. (3) If the value of the consideration given or of the property passing if no consideration is given is in dispute, the value shall be fixed by the Commissioner if the new owner consents thereto, and failing such consent the provisions of section 4(f) and (g) of the Transfer Duty Act No. 8 of 1902 shall mutatis mutandis apply. (4) The effective value of the assets passing as at the time the change of ownership takes place shall be determined by the Director of Geological Survey and Mines.

Allowance for training expenses.

18. (1) For the purpose of this section — (a) (i) “approved training scheme” means a scheme for the training of citizens of Swaziland for employment in an industry which is approved by the Commissioner and subject to such conditions and limitations as the Commissioner may determine; (ii) for the purposes of subsection (i), “industry” means any industry which the Minister may determine by written notice in the Gazette; (Replaced A.11/1985.) (b) “training premises” means any building or other premises used wholly or mainly for the purpose of any approved training scheme. (2) If the taxpayer has during the year of assessment incurred training expenses determined in accordance with subsections (3), (4) and (5) there shall be allowed as a deduction under section 14(1)(y) an amount equal to one hundred per centum of such training expenses. (3) For the purpose of this section training expenses shall, subject to subsections (4) and (5), be determined as the sum of so much of the amounts which are deductible under section 14 as the Commissioner is satisfied relates to an approved training scheme and consist of — (a) the remuneration of instructional, supervisory and clerical personnel in respect of the services of such personnel which are directly connected with the operation of an approved training scheme, including so 305

much of the contributions made by the taxpayer to any benefit fund, pension fund or provident fund, as relate to such personnel and would, if treated as remuneration, relate to such services; (b) the remuneration of trainees in respect of training periods under an approved training scheme, less so much of such remuneration as may, on the basis of a fair and reasonable apportionment, be regarded as having been incurred in respect of productive work done by such trainees during the training periods in question; (c) expenditure in respect of training premises or equipment used wholly or mainly for the purposes of an approved training scheme, including — (i) rent for such premises or equipment; (ii) maintenance costs and the cost of repairs; (iii) property rates levied by a municipality or a similar authority; (iv) insurance of such premises or equipment; (v) interest on any loan incurred in order to finance the cost of acquisition, erection, construction of or of any extension or addition to such premises or equipment; (d) any allowance granted under section 14(1)(c) and (g) in respect of equipment wholly or mainly used for the purposes of an approved training scheme; (e) the cost of materials, fuel or power consumed for the purpose of an approved training scheme, less so much of such cost as may, on the basis of a fair and reasonable apportionment, be regarded as having been incurred in respect of materials, fuel or power consumed in respect of productive work done by the trainees under such scheme; (f) travelling expenses incurred in the operation of an approved training scheme; (g) fees paid in respect of the training of trainees under an approved training scheme not operated by the taxpayer or the tuition of instructors employed for the purposes of an approved training scheme; (h) expenditure of any other nature directly incurred in the operation of an approved training scheme. (4) If any amounts which have been included in training expenses are recovered or recouped so much of such amounts as are included in the taxable income of the taxpayer under section 7(h) shall be deducted from the amount otherwise deductible under this section and if the recovery or recoupment accrues in a year subsequent to that in which the deduction under this section has been allowed an additional assessment shall be made accordingly. (5) Without prejudice to any deductions allowable prior to the 1st July, 1985. no deduction under this section shall be made in respect of any training expenses as determined under subsection (3) incurred before the 1st July, 1985. (Replaced A.11/1985.) (6) Any decision of the Commissioner under subsection (3) shall be subject to objection and appeal.

Income of beneficiaries and estates of deceased persons.

19. (1) Any income received by or accrued to or in favour of any person as the executor of a deceased person and any amount so received or accrued which would have been income in the hands of the deceased person had it been received by or accrued to or in favour of such deceased person during his lifetime, shall, to the extent that the Commissioner is satisfied that such income or amount has been derived for the immediate or future benefit of any ascertained heir or legatee of such deceased person, be deemed to be income received by or accrued to such heir or legatee, and shall, to the extent that the Commissioner is not so satisfied, be deemed to be income of the estate of such deceased person. (2) So much of the amount of any expenditure incurred by or on behalf of the estate of any deceased person during any year of assessment as in the opinion of the Commissioner relates to any amount of income deemed to be income received by or accrued to an heir or legatee of such deceased person in terms of subsection (1) shall — (a) not be taken into account in the determination of the taxable income of such estate; and (b) be deemed to be expenditure incurred by such heir or legatee during such year, and shall, to the extent that the deduction of expenditure or the nature of the expenditure in question is authorised by this Order, be taken into account in the determination of the taxable income of such heir or legatee.

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(3) Nothing in subsection (1) shall be construed as imposing liability for tax in respect of the same amount both in the hands of the estate or heir or legatee of a deceased person and in the hands of such deceased person. (4) The decision of the Commissioner in the exercise of his discretion under sub-section (1) or (2) shall be subject to objection and appeal. Date of commencement of section 19: 12th July, 1985. (L.N.80/1985.)

Hire purchase or other instalment sale agreements.

20. If any taxpayer has entered into any agreement with any other person in respect of any property the effect of which is that, in the case of movable property, the ownership shall pass, or, in the case of immovable property, transfer shall be passed, from the taxpayer to such other person, upon or after the receipt by the taxpayer of the whole or a certain portion of the amount payable to the taxpayer under the agreement, the whole of such amount shall, for the purpose of this Order, be deemed to have accrued to the taxpayer on the day on which the agreement was entered into: Provided that the Commissioner, taking into consideration any allowance he has made under section 14(1)(s), may make such further allowance, as under the special circumstances of the trade of the taxpayer seems to him reasonable, in respect of all amounts which are deemed to have accrued under such agreements but which have not been received at the close of the taxpayer’s accounting period: Provided further that any allowance so made shall be included as income in his returns for the following year of assessment and shall form part of the income of the taxpayer.

PART III

NON-RESIDENT TAX

DIVISION I — SHAREHOLDERS

Levy of non-resident shareholders tax.

21. (1) There shall be charged, levied and paid a tax (hereinafter referred to as a non-resident shareholders tax) in respect of the amounts specified in section 22. (2) The rate of the tax shall be fifteen per centum of the amount of any dividend: Provided that in the event of such dividend being paid or payable to a company incorporated or registered as such in Botswana, Lesotho, Namibia or the Republic of South Africa and provided that it is neither a subsidiary nor a branch of a company incorporated or registered outside any of such countries, the rate of tax for which such first-mentioned company shall be liable shall be twelve and one half per centum. (Amended A.6/2000.)

Income subject to tax.

22. (1) The non-resident shareholders tax shall be paid in respect of the amount of any dividend if the shareholder to whom the dividend has been paid or is payable is — (a) a person, other than a company, not ordinarily resident or carrying on business in Swaziland; (b) the estate of any deceased person referred to in section 12(1)(e)(ii) and such dividend is in terms thereof exempt from normal tax; (c) a company which has its place of effective management outside Swaziland; (Replaced A.7/1993.) (d) the holder of bearer scrip, irrespective of whether he is resident within or outside Swaziland; and was a shareholder as at the date of declaration of the dividend or, if some date other than the date of declaration of the dividend is specified as the date at which a shareholder is required to be registered to be entitled to the dividend, as at such other date. (2) The non-resident shareholders tax shall not be payable in respect of — (a) dividends received from any society or company registered under any law relating to agricultural co- operative societies in Botswana, Lesotho, Namibia, Swaziland or the Republic of South Africa; (Amended A.6/2000.)

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(b) dividends accruing to any ecclesiastical, charitable or educational institution of a public character, whether or not supported wholly or partly by grants from public revenue. (c) dividends accruing to a non-resident shareholder, which the Government has, in terms of a written undertaking, exempted from tax to the extent specified in such undertaking. (Added A.9/1988.)

Person liable for tax.

23. The person liable for the tax shall be the person to whom or in whose favour the amounts described in section 22 accrue.

Recovery of tax.

24. (1) Notwithstanding section 23, the tax shall be payable by and recoverable from the persons set out hereunder, namely — (a) in the case of dividends distributable by any company to any person whose address appearing in the share register of the company is outside Swaziland or to any holder of bearer scrip, the company by which the dividend is declared; or, (b) in the case of dividends received by any agent in Swaziland on behalf of any shareholder referred to in section 22, the agent so receiving the dividend. (2) For the purpose of this section, a person shall be deemed to be the agent of a shareholder referred to in section 22 and to have received a dividend on behalf of such shareholder if the address of such person appears in the share register of the company as the registered address of the shareholder and the dividend warrant or cheque in payment of the dividend distributable to the shareholder is delivered at that address: Provided that any person so deemed to be the agent of any shareholder shall, as regards such shareholder and in respect of any income received by or accruing to him or in his favour, have and exercise all the powers, duties and responsibilities of an agent for a taxpayer absent from Swaziland. (3) Nothing in subsection (2) shall be construed as relieving any company by which a dividend is declared from the duties and responsibilities imposed upon it by section 48 as the agent of any shareholder or member absent from Swaziland. (4) Any tax payable in terms of this section by any company or agent for any share-holder may be recovered by such company or such agent, as the case may be, from the shareholder concerned.

Determination of tax if company operates outside Swaziland.

25. If any amount specified in section 22 has been received from a company which derives income from sources within and outside Swaziland, the tax payable in respect of that amount shall be calculated upon an amount which bears to that amount the same ratio as the sum of the net profits of the company derived from sources within Swaziland bears to the total sum of its net profits derived from all sources as last determined by the Commissioner for the purposes of this Act, or, in cases in which there has been no previous determination by the Commissioner, as estimated by the Commissioner according to such information as is available to him. (Replaced A.11/1982.)

Date of payment of tax.

26. (1) The company which, in terms of section 24(1)(a), is required to pay the tax on any dividend shall pay the Commissioner the tax due on such dividend within thirty days of the date on which the dividend is payable, or within such further period as may be approved by the Commissioner, and shall furnish him with a return showing the names and addresses of the persons (with the amount in each case) to whom the dividend accrues and, in the case of dividends payable in respect of bearer scrip, the total dividends distributable to holders of such scrip. (2) The agent in Swaziland by whom the tax is payable in terms of section 24(1)(b) shall, within thirty days of the date of delivery of the dividend warrant or cheque in payment of the dividend at his address, or within such further period as may be approved by the Commissioner, pay the tax to the Commissioner and furnish him with a return showing the amount of the dividend and the name and address of the person to whom it has accrued. (3) Subsections (1) and (2) shall not prevent the Commissioner from recovering any tax from the person liable for such tax and which has not been paid and which the Commissioner may ascertain to be due, after the dates specified therein.

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DIVISION II — INTEREST

Levy of non-residents tax on interest.

27. If any amount of interest accrues to or in favour of — (a) any person, other than a company, not ordinarily resident in Swaziland; (b) the estate of any deceased person who, at the date of his death, was not ordinarily resident in Swaziland; or (c) a company not registered in Swaziland; and the debtor in respect of such amount is ordinarily resident or carries on business in Swazi-land, there shall be levied and paid a tax (in this Part referred to as non-residents tax on interest) equal to ten per centum of such amount.

Application of provisions.

28. For the purpose of this Part — (a) if interest is payable or is credited to any person having an address outside Swaziland such interest shall, until the contrary is proved, be deemed to have accrued to any person, estate or company, as the case may be, referred to in section 27; (b) if the debtor in respect of any amount of interest referred to in section 27 is the estate of any deceased person, such estate shall be deemed to be ordinarily resident or to be carrying on business in Swaziland, if such person, at the date of his death, was ordinarily resident or was carrying on business in Swaziland; (c) if the debtor in respect of any amount of interest referred to in section 27 is a company, such company shall be deemed to be ordinarily resident in Swaziland if it is registered, managed or controlled in Swaziland; and (d) any amount accruing to any shareholder in a building society out of the profits of such society shall be deemed to be interest.

Exemptions.

29. The non-residents tax on interest shall not be payable in respect of — (a) interest received from any society or company registered under any law relating to agricultural co-operative societies in Botswana, Lesotho, Namibia, Swaziland or the Republic of South Africa; (Amended A.6/2000.) (b) interest accruing to any ecclesiastical, charitable or educational institution of a public character, whether or not supported wholly or partly by grants from public revenue; (c) any interest accruing from a debtor to any person during any period of twelve months ending on the thirtieth day of June in any calendar year which together with any other amounts of interest accruing from the debtor to such person during such period, amounts to twenty Emalangeni or less; (d) interest on any bill of exchange or on any promissory note to the extent that such interest is payable in respect of the purchase price of goods imported into Swaziland if such bill or note is handled through a recognised banking institution registered under the Financial Institutions Order, 1973 or any similar banking institutions approved by the Commissioner and such bank or institution has certified on such bill or note that a bill of lading or other document covering the importation of such goods has been exhibited to it; (e) (Amended A.9/1979; deleted A.6/2000.) (f) the interest on any loan which the Government has in terms of a written undertaking exempted from tax to the extent specified in such undertaking. (Amended A.9/1979.) (g) (Added A.9/1979; deleted A.6/2000.)

Persons liable for non-residents tax on interest.

30. The person liable for the non-residents tax on interest shall be the person, estate, or company to whom or in whose favour, the amount of interest referred to in section 27 accrues.

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Deduction or withholding of non-residents tax on interest.

31. (1) Notwithstanding section 30, any debtor, in respect of any amount of interest referred to in section 30 for any person who receives payment of such amount on behalf of or in trust for the person to whom such amount accrues, shall, on behalf of the person, estate or company liable for the non-residents tax on interest, pay the Commissioner the amount of such tax payable in respect of such amount of interest under section 30: Provided that if the Commissioner is satisfied that the tax payment required to be made in terms of this paragraph in respect of such amount of interest has been or will be made by any person, the Commissioner may direct that any other person who is, in terms of this paragraph, required to make a tax payment in respect of such amount of interest, shall be relieved of the duty to make such tax payment. (2) Any person making a payment to the Commissioner in terms of subsection (1) shall, notwithstanding any agreement to the contrary, be entitled to deduct or withhold the amount of such payment from the amount of interest which he is liable to pay to such other person, or to recover the amount so paid from such other person, or to retain out of any money that may be in his possession or may come to him, as the agent of such other person, an amount equal to the amount of such payment. (3) A taxpayer on whose behalf a payment has been made to the Commissioner in terms of subsection (1) shall not be entitled to recover the amount of such payment from the person, who, under subsection (2) deducts, withholds or retains the amount of such payment, and shall, for the purpose of this Order, be deemed to have received the amount so deducted, withheld or retained. (4) Every person who is required to make a payment to the Commissioner in terms of subsection (1) shall be personally liable for making such payment, and the amount so payable shall, for the purposes of this section, be deemed to be a tax due by such person and shall be recoverable from him in the manner prescribed in section 61.

When non-residents tax on interest is payable.

32. (1) The non-residents tax on interest shall be payable within fourteen days after the date of accrual of the amount of interest referred to in section 27 or within such further time as the Commissioner may approve. (2) The person paying the tax shall, at the time of payment, submit to the Commissioner a return showing the names and addresses of the persons to whom the interest accrues and the gross amount of interest payable to each. (3) If the income of any person subject to normal tax includes an amount of interest referred to in section 27 the non-residents tax on interest paid shall be deducted from the amount of normal tax payable after any reductions provided for in section 8: Provided that the deduction under this section shall not exceed so much of such normal tax as the Commissioner determines to be attributable to the inclusion of such amount in the income of such person.

DIVISION III — ENTERTAINERS AND SPORTSMEN (Added A.11/1985.)

Levy of non-residents’ tax on entertainment and sports.

32A. (1) The remuneration of a public entertainer or sportsman not ordinarily resident in Swaziland, and the gross receipts of any theatrical, musical, sports or other group of public entertainers or sportsmen from outside Swaziland derived from any performance in Swaziland (whether such performance is conducted for the joint account of all or some of the members of the group or not) shall be charged to tax at the rate of fifteen per cent of the gross remuneration or gross receipts received or accrued to such persons: Provided that where tax is imposed under this section on any group, but subject to the proviso to subsection (5), the individual members shall not be liable to tax. (2) Any person who makes any payment to any other person referred to in subsec-tion (1) shall deduct non- residents’ entertainers tax at the rate of fifteen per cent of the gross amount and shall issue a statement to such other person showing the gross amount of payment due and the rate and amount of tax deducted. (3) Every person who makes a deduction in accordance with subsection (2) shall, within fifteen days from the date of payment, as provided for in subsection (1), remit to the Commissioner, the amount of tax so deducted. 310

(4) Where any person who is required by subsection (2) to deduct tax in accordance with that subsection from any payment made by him, fails to deduct such tax or having deducted such tax fails to remit such tax to the Commissioner, as required by subsection (3), he shall be personally liable to pay to the Commissioner the amount of tax as if it was tax due and payable by him under Part VII of this Order. (5) Where a group of theatrical, musical, sporting or other group of public entertainers from outside Swaziland perform in Swaziland without the intervention of a local agent, promoter or any other person, every member of the group shall jointly and severally be liable for the payment of the tax due under subsection (1) and tax shall be remitted to the Commissioner within a period not exceeding seven days following every performance: Provided that the Commissioner may recover the tax due from any individual member of the group at any time where circumstances warrant it.

DIVISION IV — ROYALTY AND MANAGEMENT CHARGE (Added A.6/2000.)

Levying of tax Royalties and Management Charge paid to non-resident persons.

32B. (1) It is provided that — (a) there shall, separately and cumulatively or collectively where applicable, be charged, levied and paid a tax in respect of any amount of any royalty and management charge received by or accrued to or in favour of any person not ordinarily resident or carrying on business in Swaziland and; (b) the rate of tax shall be fifteen per cent of the gross amount of any royalty and fifteen per cent of the gross amount of any management charge. (2) Every person who makes any payment of royalty or management charge or both to a person not ordinarily resident or carrying on business in Swaziland shall withhold tax from such payment in accordance with the rate specified in subsection (1)(b). (3) Where tax has been withheld under subsection (2) the withholding tax shall be a final tax. (4) Every person who has withheld any tax under subsection (2) shall — (a) furnish, to the person to whom payment is made of any royalty or management charge or both as the case

may be, a certificate showing the amount of the payment made and -the tax withheld during the year of assessment; and (b) within fifteen days from the date of payment of such royalty or management charge, as the case may be, remit to the Commissioner the amount of tax withheld. (5) Every person making any payment to which this section applies shall maintain a record showing, in relation to each year of assessment, the payments of royalties or management charge made to each non-resident person and tax withheld from such payments, and such record shall be kept available, for the period specified under section 33(16), for examination by the Commissioner as and when required. (6) It is further provided that — (a) any person who fails to withhold tax in accordance with subsection (2), shall, in addition to any penalty for which he may be liable, be personally liable to pay the Commissioner the tax which he should have withheld as if it were tax due and payable by him under PART VII of this Order; (b) where any person pays to the Commissioner the amount of tax which he failed to withhold, such an amount shall be deemed to have been withheld under this section; and (c) the person making such payment to the Commissioner under subparagraph (a) shall be entitled to recover such amount from the person who received or to whom a royalty or management charge accrued to or from the person in whose favour it was made or accrued to, that is to say, the person from whom the deduction ought to have been effected against under subsections (1) and (2). (Added A.6/2000.)

DIVISION V — INTEREST PAID TO RESIDENTS (Added A.6/2000.)

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Withholding tax from payments of interest made to persons ordinarily resident in Swaziland.

32C. (1) Every financial institution (including a building society) which makes any payment of interest to an individual ordinarily resident in Swaziland shall withhold tax at the rate of ten percent of the gross amount. (2) The tax withheld under subsection (1) shall be a final tax and — (a) no further tax liability shall be imposed upon the tax payer in respect of the interest to which the tax relates; (b) the income shall not be aggregated with the other income of the tax payer for the purposes of ascertaining taxable income; (c) no deduction shall be allowed for any expenditure or losses actually incurred in deriving the income; and (d) no refund of tax shall be made in respect of the income. (3) Every person who has withheld any tax under subsection (1) shall — (a) furnish within thirty days after the end of the year of assessment to the person to whom payment of interest is made a certificate, showing the amount of the payment made and the tax withheld during the year of assessment;

(b) within fifteen days from- the date of payment of such interest remit to the Commissioner the amount of tax so withheld. (4) Every person making any payment (of interest) to which this section applies shall maintain a record showing in relation to each year of assessment — (a) the payment of interest made to each resident person; (b) the tax withheld from such payment, and such record shall be kept for the period specified under section 33(16) for examination by the Commissioner as and when required. (5) It is further provided that — (a) where any person fails to withhold any tax under subsection (1) or having deducted such tax fails to remit such tax to the Commissioner, as required by subsection (3), shall, in addition to any penalty for which he may be liable under section 66, be personally liable to pay the Commissioner that amount of tax as if it were tax due and payable by him under Part VII of this Order; (b) where any person pays to the Commissioner the amount of tax which he failed to withhold, such amount shall be deemed to have been withheld under this section; and (c) the person making such payment to the Commissioner under paragraph (a) shall be entitled to recover such amount from the person to whom a payment of interest was made. (Added A.6/2000.)

PART IV

RETURNS AND ASSESSMENTS

Notice requiring returns and manner of furnishing returns.

33. (1) The Commissioner shall annually give public notice that all persons liable to taxation, whether personally or in any representative capacity, are required to furnish within thirty days after the date of such notice or within such further time as the Commissioner may for good cause allow, returns for assessment of the tax. (2) Such notice shall state the places at which the approved forms may be obtained and it shall be the duty of all such persons and all persons required by this Order to furnish such returns, to apply for the approved forms of returns, and any such person failing to furnish such return shall not be relieved from any penalty by reason only of his having received no notice to furnish such return, or of the approved form not having been delivered to him; but the Commissioner may, if he deems it so advisable, cause forms to be delivered or sent by post to any person. (3) For the purposes of subsection (1), any person liable to taxation shall be deemed to include — (i) any person, other than a company, whose gross income for the year of assessment under charge consisted of or included remuneration (as defined in paragraph 1 of the Second Schedule) exceeding in total an amount to be stated by the Commissioner in the notice referred to in subsection (1); 312

(ii) any person, other than a company, whose gross income, for the year of assessment under charge, consisted of gross income other than remuneration (as defined in paragraph 1 of the Second Schedule) if such gross income exceeded an amount to be stated by the Commissioner in the said notice; (iii) any company; (iv) any person required by the Commissioner in writing to render a return of income in respect of the year of assessment under charge. (Replaced A.11/1985.) (4) If in any case the Commissioner has reason to believe that any tax payable may not be recovered, he may prior to the issue of any such annual notice, require any person by notice in writing to render interim accounts for any period he may designate in such notice and may proceed to make an assessment in respect of that period. (5) Every person shall, on publication of the annual notice or on receipt of such written notice, prepare and deliver in the approved manner within the period mentioned in such notice to the person appointed to receive it, a return in the approved form signed by the taxpayer or by his duly authorised agent in that behalf, giving the particulars required and all other details in relation thereto which may be required. (6) Every person shall, on receipt of such written notice, prepare and deliver in the approved manner within the period mentioned in such notice to the person appointed to receive it, a return in the approved form signed by the taxpayer or by his duly authorised agent in that behalf giving the particulars required and such other details in relation thereto as may be required. (7) Any return furnished as contemplated in this section shall be signed by the taxpayer or by his agent duly authorized in that behalf, and any person signing any such return shall be deemed for all purposes in connection with this Order to be cognisant of all statements made therein. (Replaced A.6/1994.) (8) Any return made or purporting to be made or signed by or on behalf of any person for the purposes of this Order shall be deemed to be duly made and signed by the person affected unless such person proves that such return was not made or signed by him or on his behalf. (9) If any person fails to make a return, the Commissioner may appoint a person to make a return on behalf of such person, and the return made by the person so appointed shall for all purposes of this Order be deemed to be the return of the person liable to make the same. (Replaced A.6/1994.) (10) The returns furnished by or on behalf of every person required to furnish returns under this Order shall contain such particulars, be in such form and be furnished to the Commissioner at such time as may be required by the Commissioner. (11) The Commissioner may, when and as often as he thinks necessary require any person to make fuller or further returns respecting any matter of which a return is required or prescribed by this Order. (12) Notwithstanding any other law any return required to be furnished under this Order shall be delivered at or sent by post to the prescribed address, and shall, if marked with the words “Income Tax” and “On His Majesty’s Service”, be carried and delivered free of postal or other charges by the Post Office. (13) The return of income to be made by any person shall be based on the amount of gross income which was received by or accrued to or in his favour in respect of any year of assessment chargeable under this Order, and shall be a full and true return for the whole period of twelve months ending upon the last day of the year of assessment under charge. Provided that if it is established to the satisfaction of the Commissioner that the income of a person cannot be conveniently returned for such period, he may accept returns made up to a date agreed by him, but any such return shall be deemed for all purposes of this Order to be a return for the period covered by the year of assessment under charge. (14) If any person when called upon to furnish a return of income under this Order is unable to furnish such return, the Commissioner may accept a return of estimated income for assessment and such assessment shall be adjusted by the Commissioner when an actual return of income is furnished. (15) Persons carrying on any business in partnership shall be liable to make a joint return as partners in respect of such business together with such particulars as may from time to time be required and each such partner shall be separately

313 and individually liable for the rendering of the joint return but they shall be liable to tax only in their separate individual capacities. (16) Every person carrying on any trade or business in Swaziland shall keep a proper record of his transactions in English or siSwati and for the purpose of this subsection a proper record shall include books containing all such entries relating to and exhibiting the nature of his transactions as (regard being had to the occupation of the person concerned and the scale on which his trade or business is carried on) might reasonably be expected or required ot be kept, and unless otherwise authorised by the Commissioner, shall retain for five years from the date of the last entry all documents relating to any business carried on by him, or otherwise recording the details from which his returns for the purposes of this Order were prepared. (Amended A.11/1985; A.6/1994.)

Assessment not to be made on certain persons.

33bis. The Commissioner shall not assess any person who was in continuous employment with the same employer for any year of assessment, if such a person had no income chargeable to tax for such year of assessment other than income consisting of remuneration, and if on the basis of such remuneration the tax payable by such person in respect of such remuneration has been recovered by deduction under the Second Schedule. Provided that prior to the expiry of three years after such year of assessment, such a person may apply to the Commissioner to be assessed, whether in connection with any claim for a refund of tax overpaid or otherwise, or the Commissioner considers an assessment to be necessary or expedient so as to arrive at the correct amount of the tax to be charged upon or to be payable by such a person for such year of assessment. (Added A.6/1994.)

Duty of persons submitting accounts in support of returns or preparing accounts for others.

34. (1) If any person in support of any return furnished by him under this Order, submits any balance sheet, statement of assets and liabilities or account prepared by any other person, he shall, if the Commissioner so requires, submit a certificate or statement by such other person recording the extent of the examination by such other person of the books of account and of the documents from which the books of account were written up and recording in so far as may be ascertained by such examination, whether or not the entries in such books and documents disclose the true nature of any transaction, receipt, accrual, payment or debit. (2) Any person who has prepared any balance sheet, statement of assets and liabilities or account for any other person shall at the request of such other person furnish him with the certificate or statement required under subsection (1).

Financial statements to be audited by a registered auditor.

34bis. (1) Where a taxpayer’s financial statements are required to be audited in terms of the Companies Act or in terms of the taxpayer’s constitution, then such financial statements submitted in support of any return of income or provisional return of income shall be deemed not to have been submitted unless the financial statements have been audited by a registered auditor. (2) For the purpose of this section, registered auditor, shall have the meaning assigned to it in the Institute of Accountants Act of 1985. (Added A.6/1994.)

Inquiry before assessment.

34ter. (1) For the purpose of making an assessment under this Order, the Commissioner may serve on any person who has made a return under section 33, a notice requiring such person, within thirty days after the date of such notice or within such further time as the Commissioner may for good cause allow, calling upon such person to: (i) produce such accounts or documents as the Commissioner may require; (ii) furnish in writing and verified in the prescribed manner information in such form on such points or matters (including a statement of assets and liabilities of the taxpayer whether included in the accounts or not) as the Commissioner may require. (2) For the purpose of obtaining full information in respect of income or loss of a taxpayer, the Commissioner may make such enquiry as he considers necessary.

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(3) The taxpayer, shall, except where the assessment has been made under section 39(1), be given an opportunity of being heard in respect of any material gathered on the basis of an enquiry under subsection (2) and proposed to be utilised for the purpose of assessment. (Added A.6/1994.)

Production of documents and evidence on oath.

35. (1) For the purpose of obtaining full information in respect of any income of any taxpayer the Commissioner may require any person to produce for examination by the Commissioner or by any person appointed by him for such purpose at such time and place as may be appointed by the Commissioner any deeds, plans, instruments, books, accounts, trade lists, stock lists, or documents that may be deemed necessary for the purpose of this Order, and, if any such deeds, plans, instruments, books, accounts, lists or documents are not in English or siSwati, the Commissioner may by notice, in writing, require the taxpayer at the taxpayer’s expense to produce at such time and place as may be appointed a translation in English or siSwati prepared and certified by a sworn translator or a person other than a sworn translator approved by the Commissioner. (Amended A.11/1985.) (2) The Commissioner may, by written notice require any person entitled to or in receipt of any income (whether on his own behalf or as a public officer of a company or as an agent or trustee of any person), or any person whom the Commissioner may deem able to furnish information to attend at a time and place to be named by the Commissioner for the purpose of being examined on oath respecting the income of any person or any transactions or matters affecting the income of any person or any transactions or matters affecting them or any of them or any part thereof. (3) The Commissioner shall allow any person any reasonable expenses necessarily incurred by such person in attending at the place named by the Commissioner in subsection (2). (4) Any officer engaged in carrying out the provisions of this Order who has in relation to the affairs of a particular person been authorised thereto by the Commissioner in writing or by telegram, may for the purposes of this Order — (a) without previous notice, at any time during the day, enter any premises what-soever and on such premises search for any moneys, books, records, accounts or documents; (b) in carrying out any such search, open or cause to be removed and opened, any article in which he suspects that any money, book, record, account or document is contained; (c) seize any such book, record, account or document as in his opinion may afford evidence which may be material in assessing the liability of any person for any tax; (d) retain any such book, record, account or document for as long as it may be required for any assessing or for any criminal or other proceedings under this Order. (5) Any person exercising any power under subsection (4) shall on demand produce the written authority furnished to him by the Commissioner. (6) The person to whose affairs any book, record, account or document seized under subsection (4) relates, shall be entitled to examine and make extracts therefrom during office hours under such supervision as the Commissioner may determine.

Power of inspection.

36. (1) Notwithstanding anything contrary contained in any other provision of this Order, any officer engaged in the carrying out of the provisions of this Order relative to the affairs of a particular taxpayer, may enter any place at which a business or trade is carried on (whether such place be the principal place of the said business or trade or not) and require the taxpayer or public officer or any other person who may at that time and place be attending in any manner to or keeping in the carrying on of such business or trade to afford him: (a) the necessary facility to inspect such books of account or other documents as he may require and which may be available at the place; (b) the necessary facility to verify cash, stock or other valuable article or thing which may be found therein; (c) such information as he may require as to any matter which may be relevant to any proceeding under this Order. 315

(2) The officer acting under this section may enter any place of business or trade referred to in subsection (1) only during the hours at which such place is open for conduct of business or trade, and in the case of any other place, during normal business hours. (3) The officer acting under this section may — (a) if he so deems necessary, place marks of identification on the books of account or other documents inspected by him or make or cause to be made extracts or copies therefrom; (b) make an inventory of any cash, stock or other valuable article or thing checked and verified by him; (c) record the statement of any person which may be relevant to any proceeding under the Order. (4) Any officer exercising any power under this section shall not remove or cause to be removed from such place any books of account or other documents or any cash, stock or other valuable article or thing found therein. (5) Any person obstructing or hindering an officer in the discharge of his duties, under this section shall be guilty of an offence under section 66(1) of the Order. (Replaced A.11/1985; Deleted A.10/1991; Added A.6/1994.)

Duty to furnish returns of persons employed.

37. (1) Every person shall, if required by the Commissioner furnish him in such form and at such time as the Commissioner may require with returns of all or any particular class of persons employed by him, the earnings, salary, wages, allowances or pensions, whether in money or otherwise, paid or allowed to each person so employed. (2) Every person carrying on business in Swaziland shall in such manner and form, and at such times as the Commissioner may require furnish to the Commissioner returns showing — (a) all payments made to any person in respect of any share or interest in such business; (b) all moneys received by him from any person on deposit for any fixed time or period with or without interest; (c) all such other information in his possession with regard to the income received by or accruing to or in favour of such person as may be required by the Commissioner. (3) Every person to whom a form of return is sent by the Commissioner shall complete it in accordance with the requirements of the Commissioner and shall return it to the Commissioner at such time and place as the Commissioner may direct.

Duty to furnish information on request.

38. Any person, whether liable for taxation under this Order or not, to whom any notice or request for information is sent by the Commissioner or by any officer acting under the authority of the Commissioner, shall comply with the terms of such notice or furnish the information so requested.

Estimated assessments.

39. (1) In every case in which any taxpayer makes default in furnishing any return or information, or if the Commissioner is not satisfied with the return or information furnished by any taxpayer, the Commissioner may make an assessment in such sum as in the Commissioner’s judgement ought to be charged in accordance with this Order, and thereupon shall give notice thereof to the taxpayer to be charged, and such taxpayer shall be liable to pay the taxpayer upon such sum. (Replaced A.6/1994.) (2) Any such assessment shall be subject to objection and appeal as provided in this Order. (3) If it appears to the Commissioner that any person is unable from any cause to furnish an accurate return of his income, the Commissioner may agree with such person as to what shall be the taxable income of such person and any taxable income so agreed shall not be subject to any objection or appeal.

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Additional tax in case of default or omission.

40. (1) Subject to subsection (3), the Commissioner shall require a taxpayer to pay in addition to the tax chargeable in respect of his taxable income — (a) if he makes default in rendering a return in respect of any year of assessment, an amount equal to twice the tax chargeable in respect of his taxable income for such year of assessment; (b) if he omits from his return any amount which ought to have been included therein, an amount equal to twice the difference between the tax as calculated in respect of the taxable income returned by him and the tax properly chargeable in respect of his taxable income as finally determined after including the amount omitted; or (c) if he makes any incorrect statement in any return rendered by him which results or would if accepted result in the assessment of the normal tax at an amount which is less than the tax properly chargeable, an amount equal to twice the difference between the tax as assessed in accordance with the return made by him and the tax properly chargeable if the incorrect statement had not been made. (2) The additional amounts of tax payable under this section may be chargeable whether the taxable income or any part thereof is estimated by the Commissioner in terms of section 39, or agreed with the taxpayer in terms of subsection (3) thereof, or such taxable income or any part thereof as is determined from accounts rendered by the taxpayer. (3) (a) If the Commissioner is satisfied that the default in rendering the return was not due to any intent either to defraud the revenue or to postpone the payment by the taxpayer of the tax chargeable or that any such omission or incorrect statement was not due to any intent to evade taxation on the part of the taxpayer, he may waive or remit such part or all of such additional charge as he may think fit. (b) In the event the Commissioner deciding not to remit the whole of the additional charge imposed under subsection (1), his decision shall be subject to objection and appeal. (c) Notwithstanding the provisions of this subsection, the Commissioner may either before or after an assessment is issued agree with the taxpayer on the amount of the additional charge to be paid, and the amount so agreed upon shall not be subject to objection and appeal. (Amended A.6/1994.) (4) The powers conferred upon the Commissioner by this section shall be in addition to any right conferred upon him by this Order to take proceedings for the recovery of any penalties for evading or avoiding assessment of the payment of tax or attempting to do so. (5) Any taxpayer, who in determining his taxable income as disclosed by his return, deducts or sets off any amount the deduction or set off whereof is not permissible under this Order or shows as an expenditure or loss any amount which he has in fact not expended or lost, shall be deemed for the purpose of this section to have omitted such amount from his return. (6) Any taxpayer who wilfully fails to disclose in any return made by him any facts which should be disclosed and the disclosure of which would result in the taxation of the taxpayer’s income on an amount which is higher than the amount upon which such income would be taxable on such return, shall be deemed, for the purpose of this section, to have omitted from his return the amount by which the former amount exceeds the latter. (7) If in any year of assessment in which the determination of the taxable income of the taxpayer does not result in an assessed loss, he is entitled to the set-off of a balance of assessed loss from the previous year of assessment and such balance is less than it would have been had it been calculated on the basis of the returns rendered by him, he shall be deemed, for the purpose of this section, to have omitted from his return for the first-mentioned year of assessment an amount equal to the difference between the amount at which such balance is finally determined and the amount at which it would have been determined on such basis.

Additional assessments.

41. (1) Notwithstanding section 52(4) if at any time the Commissioner is satisfied that any amounts which should have been subject to tax have not been assessed to tax under this Order or any previous income tax law, or than any amount of tax which was chargeable and should have been assessed under this Order has not been assessed, he may raise assessments in

317 respect of such amounts notwithstanding that assessments may have been made upon the person concerned in respect of the year or years of assessment in respect of which the amounts in question are assessable: (Amended A.6/1987.) Provided that the Commissioner shall not raise any assessment under this subsection — (a) after the expiry of six years from the date of assessment in terms of which any amount which should have been assessed to tax under such assessment was not so assessed unless he is satisfied that the amount was not so assessed because of fraud or misrepresentation or nor non-disclosure of material facts; (b) if the amount which should have been subject to tax was not assessed to tax, in accordance with the practice generally prevailing at the time when the assessment was made; or (c) in respect of any amount, if any previous assessment made on the person concerned for the year of assessment in question has in respect of such amount been amended or reduced pursuant to any order of court unless such order was obtained by fraud or misrepresentation or non-disclosure of material facts. (2) Sections 39 and 40 shall apply to any assessment or additional assessments made by the Commissioner under the powers conferred by this section.

Assessments and the recording thereof.

42. (1) The particulars of every assessment and the amount of tax payable thereon shall be recorded or filed and kept in the office of the Commissioner. (2) Upon recording or filing of the particulars of any assessment, the Commissioner shall give notice of the assessment to the taxpayer whose income has been assessed. (3) Such notice shall be sent to the taxpayer by post or delivered to such person in such other manner as the Commissioner may consider necessary or convenient. (4) The Commissioner shall in the notice of assessment give notice to the taxpayer that any objection to the assessment made must be sent to him within twenty one days after the date of such notice or within such further time as he or the court may for good cause allow.

Inspection of assessments.

43. Particulars of income tax assessments shall not be open to public inspection, but every taxpayer shall be entitled to copies certified by or on behalf of the Commissioner of such entries as relate to the assessment of his own income.

PART V

REPRESENTATIVE TAXPAYERS

Representative taxpayers.

44. In this Order unless the context otherwise requires —

“representative taxpayer” means — (a) in respect of the income of any company, the public officer thereof; (b) in respect of the income of any person permanently or temporarily absent from or resident out of Swaziland, the agent of such person, and for the purpose of this paragraph every person in Swaziland having the receipt, management or control of any income on behalf of any person so absent or resident, or remitting or paying any income to or receiving any money for such person, shall be deemed to be the agent of such person; (c) in respect of the income of trust or any minor or mentally disordered and defective person or any other person under legal disability, the trustee, guardian, curator or other person entitled for the time being to the receipt, management, disposal or control of such income or remitting or paying to or receiving any money on behalf of such person under disability;

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(d) in respect of income paid under a decree or order of any court to any receiver or other person, such receiver or person, whoever may be entitled to the benefit of such income, and whether or not it accrues to any person on a contingency or any uncertain event; (e) in respect of the income received by or accrued to any deceased person during his lifetime and the income received by or accrued to the estate of any deceased person, the executor or administrator of the estate of such deceased person: Provided that this definition shall not be construed as relieving any person from any liability, responsibility or duty imposed upon him by this Order.

Liability of representative taxpayer.

45. Every representative taxpayer, as regards the income to which he is entitled in his representative capacity or of which in such capacity he has the management, receipt, disposal, remittance, payment or control, shall be chargeable with the taxation imposed by this Order and shall be subject in all respects to the same duties, responsibilities and liabilities as if the income were income received by or accruing to or in favour of him beneficially, except that no representative taxpayer (not being a public officer or a company) shall, save as provided by section 47, be personally liable for the payment of any tax beyond the amount of the income of which he has the management, receipt, disposal or control in such capacity: Provided that nothing herein shall, if the representative taxpayer acts as an agent or trustee or in any other capacity for several persons, prevent him from claiming that each agency or trust or other capacity shall be treated separately for the purpose of claiming any exemption or deduction provided by this Order.

Right of representative taxpayer to indemnity.

46. Every representative taxpayer who, as such, pays any tax shall be entitled to recover it from the person on whose behalf it is paid or to retain out of any moneys that may be in his possession or may come to him in his representative capacity so much as is required to indemnify him in respect of such payment.

Personal liability of representative taxpayer.

47. Ever representative taxpayer shall be personally liable for any tax payable in respect of any assessment made upon him in his representative capacity if, while it remains unpaid — (a) he alienates, charges or disposes of the income in respect of which the tax is chargeable; or (b) he disposes of or parts with any fund or money which is in his possession or comes to him after the tax is payable when from or out of such fund or money the tax could legally have been paid.

Absent shareholder.

48. If a shareholder or a member of a company is absent from Swaziland, such company shall, for the purpose of this Order, be deemed to be the agent for such shareholder or member, and shall, as regards such shareholder or member and in respect of any income received by or accruing to him or in his favour as shareholder or member, have and exercise all the powers, duties and responsibilities of an agent for a taxpayer absent from Swaziland.

Commissioner’s power to appoint agents.

49. (1) The Commissioner may declare any person to be an agent of any other person and the person so declared an agent shall be the agent for the purpose of this Order and may be required to pay to the Commissioner any tax due from any money which — (a) is due or may become due to the person whose agent he has been declared; (b) the person holds or may subsequently hold for or on account of the person whose agent he has been declared; or (c) the person has authority from some other person to pay to the person whose agent he has been declared, within fifteen days of the date of service of the notice of declaration or, if on such date no money is due from him to, or is held by him for or on account of, that person, within fifteen days of the date on which 319

such money becomes due to, or available for or on account of that person, the amount specified in such declaration, or, if such amount is less than the amount specified, the whole of the money due, held or available. (2) Without prejudice to the liability of the taxpayer under this Order, if an agent after receipt of a notice parts with any money to which the notice relates, he shall be liable pro tanto for the tax due by such person. (Replaced A.11/1982.)

Remedy against property.

50. The Commissioner or any person empowered under this Order shall have such and the like remedies against all property of any kind vested in or under the control or management of any agent or trustee as he would have against the property of any person liable to pay any tax and in as full and ample a manner.

Public officers of companies.

51. (1) Every company carrying on business or having office in Swaziland shall at all times be represented by an individual residing therein, who shall be known as the “public officer” of such company. (2) The public officer of a company shall be appointed by the company or by an agent or attorney who has authority to make such appointment and shall be approved by the Commissioner. (3) In the case of a company which commences business or which first has an office in Swaziland after the commencement of this Order, the public officer shall be appointed within one month after such commencement or having an office, and in default of any appointment the Commissioner may designate a managing director, director, secretary or other officer of the company as its public officer. (4) Every company shall within the period prescribed by subsection (3) appoint a place within Swaziland at which any notices or other instruments under this Order affecting the company may be served or delivered or to which any such notices or documents may be sent. (5) No appointment shall be deemed to have been made under subsections (3) or (4) until notice thereof specifying the name of the public officer and an address for service or delivery of notices and documents has been given to the Commissioner. (6) Every company shall keep the office of public officer constantly filled and shall at all times maintain a place for the service or delivery of notices in accordance with sub-section (4). (7) Every company shall notify the Commissioner of any change in the person of its public officer or of the place for the service or delivery of notices within fourteen days of such change taking place. (8) Any company which fails to comply with subsections (3), (4), (6) or (7) and every person who acts within Swaziland as agent or manager or representative of such company shall, while such failure continues, be liable to a penalty not exceeding twenty Emalangeni for every day during which the fault continues and such penalty shall be recoverable by the Commissioner by action in any court. (Amended A.11/1985.) (9) Any notice, process or proceeding which may under this Order be given to, served upon, or taken against any company, may be given to, served upon or taken against its public officer and if at any time there is no public officer then any such notice, process or proceeding may be given to, served upon, or taken against any officer or person acting or appearing to act in the management of the business or affairs of such company or as agent for such company. (10) Every public officer shall — (a) within two months of the registration by the Registrar of Companies of the company of which he is the public officer file with the Commissioner a copy of the memorandum and articles of association of such company; (b) within thirty days of the registration by the Registrar of Companies of any prospectus proposed to be issued by such company file with the Commissioner a copy of such prospectus; (c) within two months of any amendment of the memorandum and articles of association of such company file with the Commissioner a certified copy of such amendment.

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(11) Every public officer shall be answerable for doing of all such acts, matters or things as are required to be done under this Order by a taxpayer, and in case of default, shall be liable to the penalties provided in respect of defaults by a taxpayer. (12) Everything done by any public officer which he is required to do in his representative capacity shall be deemed to have been done by the company which he represents. (13) The absence or non-appointment of a public officer shall not exonerate any company from the necessity of complying with this Order, but the company shall in all respects be subject to and liable to comply with this Order as if there were no requirement to appoint such officer. (14) Any public officer appointed under the Income Tax (Consolidation) Act, No. 84 of 1959 shall, unless the Commissioner disapproves of his appointment, be deemed to be appointed under this Order: Provided that if the Commissioner so disapproves the company shall appoint another person in his stead as its public officer.

PART VI

OBJECTIONS AND APPEALS

Time and manner of lodging objections.

52. (1) Any objection to any assessment made under this Order shall be made within twenty-one days after the date of the assessment notice or within such further time as the Commissioner may for good cause allow in the prescribed manner and under the prescribed terms by any taxpayer who is aggrieved by any assessment in which he is interested. (2) Every objection shall be in writing and shall specify in detail the grounds upon which such objection is made. Provided that the taxpayer, for the purpose of the objection, shall not be entitled to rely on any evidence whether oral or documentary, other than the evidence produced by him during the course of the assessment except in the following circumstances: (a) where the Commissioner has refused to admit evidence which ought to have been admitted; (b) where the taxpayer was prevented by sufficient cause from producing the evidence which he was called upon to produce; and (c) where the assessment was made without giving sufficient opportunity to the taxpayer to adduce evidence relevant to any ground of objection. (Amended A.6/1994.) (3) On receipt of a notice of objection to an assessment, the Commissioner may reduce or alter the assessment or may disallow the objection and shall send the taxpayer notice of such alteration, reduction or disallowance and shall record in the assessment register any alteration or reduction made in the assessment. (4) If no objection is made to any assessment or if an objection has been allowed or withdrawn, such assessment or altered or reduced assessment, as the case may be, shall, subject to the right of appeal provided in this Part and subject to section 41(1), be final and conclusive.

Onus of proof as to exemptions, etc..

53. The burden of proof that any amount is exempt from or not liable to any tax chargeable under this Order or is subject to any deduction or set-off, shall be upon the person claiming such exemption, non-liability, deduction or set-off, and upon the hearing of any appeal from any decision of the Commissioner, the decision shall not be reversed or altered unless it is shown by the appellant that the decision is wrong.

Appeal against Commissioner’s decision.

54. (1) Any taxpayer who is dissatisfied with any decision of the Commissioner as notified in the notice of alteration or reduction of an assessment or disallowance of an objection may appeal therefrom to the court:

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Provided that no such notice of appeal shall be of any force and effect, unless it is lodged with the Commissioner within the period prescribed in subsection (2). (2) Notice of such appeal shall be in writing and shall be lodged with the Commissioner within twenty-one days after the date of any notice of alteration, reduction or disallowance referred to in section 52(3), or within such further time as the Commissioner or the court may for good cause allow. (3) On the hearing of any such appeal the taxpayer shall be limited to the grounds stated in his notice of objection. (4) If the assessment has been altered or reduced, the assessment so altered or reduced shall be deemed to be the assessment against which the appeal is made. (5) The Commissioner shall as soon as is practicable apply to the Registrar of the High Court in accordance with the High Court Rules for the appeal to be set down for hearing by the court: Provided that such application shall be accompanied by a summary of the facts and questions of law, if any, in issue, a copy of the notice of assessment objected against, a copy of the taxpayer’s objection thereto, a copy of the Commissioner’s reply to such objection and a copy of the notice of appeal: Provided further that if the Commissioner has failed to make such application within three months of the date upon which the taxpayer has lodged the notice of appeal in terms of subsection (2) the taxpayer may apply to the Registrar of the High Court for the appeal to be set down for such hearing and the Registrar shall immediately thereupon call upon the Commissioner to lodge with him a summary of the facts and questions of law, if any, in issue, a copy of the notice of assessment objected against, a copy of the taxpayer’s objection thereto, a copy of the Commissioner’s reply to such objection and a copy of the notice of appeal within ten days from the date of such request. (6) At least twenty-one days before the date fixed for the hearing of the appeal the Registrar of the High Court shall send the Commissioner, the Attorney-General and the taxpayer or his duly authorised attorney or representative a written notice of the time and place appointed for the hearing of such appeal. (7) The sittings of the court for the hearing of any appeal under this section shall not be public and the court shall at any time on the application of the appellant exclude any person whose attendance is not necessary for the hearing of the appeal under consideration from such sitting or require him to withdraw therefrom: Provided that the court may authorise the publication of the whole or any part of its judgment in any law report or legal journal without mention of the name of the taxpayer concerned: Provided further that this subsection shall not apply to an appeal to the Court of Appeal, except to such extent as the Court of Appeal may direct. (8) The Commissioner or any person authorised by him may appear in support of the assessment on the hearing of any appeal and the appellant and any person who is interested in such appeal may appear in person or by his counsel, attorney or agent. (9) The court may alter or order the alteration of the assessment in accordance with the decision given on any appeal but may only make an order as to costs if the claim of the Commissioner is held to be unreasonable or the grounds of appeal are held to be frivolous. (10) The Chief Justice may make rules of the High Court prescribing the procedure to be observed in the conduct of appeals under this Order before it.

Obligation to pay not suspended pending appeal.

55. The obligation to pay and the right to receive and recover any tax chargeable under this Order shall not, unless the Commissioner so directs, be suspended by any appeal or pending the decision of the court under section 56, but if any assessment is altered on appeal or in conformity with any such decision, a due adjustment shall be made, for which purpose any amount paid in excess shall be refunded and any amount shortpaid shall be recoverable.

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Questions of law.

56. If a question of law arises with regard to any assessment or altered or reduced assessment under this Order, the Commissioner may, within thirty days after receipt of any notice of objection or any notice of appeal under this Order, of his own motion or at the request of the taxpayer concerned, state a case for the determination of such question by the court.

PART VII

PAYMENT AND RECOVERY OF TAX

Appointment of day for payment of tax.

57. (1) Any tax chargeable under this Order shall be paid on such days and at such places as may be notified by the Commissioner: Provided that: (a) on application by the taxpayer the Commissioner may allow the payment of such tax in instalments of equal or varying amounts as he may determine having regard to the circumstances of the case: (b) where the tax is permitted to be paid by instalments and there is default in payment of any instalment, the whole balance of the tax outstanding shall become payable forthwith. (Amended A.6/1994.) (2) There shall be added to any amount of tax not paid on or before the due date fixed in the Commissioner’s notification or as specified in this Order, interest calculated at the rate of eighteen per centum per annum reckoned from the due date to the date of payment: Provided that the Minister may by written notice in the Gazette reduce or increase the rate of such interest. (Amended A.6/1987; A.10/1991.)

Payments of employees tax. (Second Schedule)

58. Payments in respect of the liability (whether or not such liability has been ascertained or determined at the date of any payment) of every employee, as defined in the Second Schedule, for any tax shall be made in accordance with the Second Schedule, and any such payment may be made at such place as may be notified by the Commissioner.

Payment of provisional tax. (Fourth Schedule)

58A. (1) Provisional tax shall be paid in accordance with the provisions of the Fourth Schedule at such place as may be notified by the Commissioner, and such payments which relate to a taxpayer shall, for the purposes of this Order, and subject to the provisions of paragraphs 14 and 15 of the said Schedule, be deemed to have been made in respect of his liability for taxes as defined in subsection (3), whether or not such an assessment has been made at the date of any payment. (2) If any amount of provisional tax is not paid in full within the relevant period prescribed for payment of such amount by paragraphs 7, 8 or 9, interest shall be paid by the person liable to pay the amount in question at the rate prescribed in section 57(2) of this Order on so much of such amount as remains unpaid in respect of the period (reckoned from the end of the relevant period prescribed as aforesaid for payment of such amount) during which the amount underpaid remains unpaid. (3) For the purposes of this section, “taxes” means the taxes as defined in section 2, excluding non-resident shareholders tax, non-resident tax on interest and non-resident tax on entertainers and sportsmen. (Added A.11/1985.) Withholding of tax from payments to non-resident contractors. (Amended A.7/1989; A.6/2000.) 59. (1) For the purposes of this section — “agreement” means a single agreement or a series of agreements; and “non-resident person” means any person whose principal place of business is outside Swaziland. (2) Every person who makes payment to a non-resident person under an agreement relating to construction operations shall withhold tax from such payments at the rate specified under subsection (3). 323

(3) The amount of tax to be withheld in respect of subsection (2) shall be fifteen per cent of so much of the payment as is not shown to represent the direct cost (to any other person) for materials used or to be used in carrying out the construction operations to which the agreement relates (4) The tax withheld under subsection (3) shall be on account of the liability to tax of the non-resident person. (5) Every person who has withheld any tax under subsection (3) shall — (a) furnish the non-resident person to whom any payment is made with a certificate showing the amount of the payment due under the agreement and the tax deducted therefrom; (b) within fifteen days from the date of payment remit to the Commissioner the amount of tax withheld. (6) No deduction of tax under this section shall relieve the non-resident person from the obligation to furnish any return for the assessment of the tax under section 33 or from any other obligation imposed by this Order. (7) Every person making any payment to which this section applies shall maintain a record showing, in relation to each year of assessment the amounts of payments made and the amounts of tax withheld, and such record shall be kept available, for the period specified under section 33(16), for examination by the Commissioner as and when required. (8) Every person to whom this section applies shall within thirty days after the end of the year of assessment or within such further time as the Commissioner may allow, furnish to the Commissioner a return showing the total — (a) amount of tax withheld by such person during the year of assessment; and (b) payments of such tax which have been made to the Commissioner and the total amount, in terms of this section, which ought to have been paid over to the Commissioner respecting the tax. (9) Any person who fails to withhold tax in terms of this section or who fails to remit the tax in accordance with subsection (5) shall, in addition to any penalty for which he may be liable to under section 66, be personally liable to pay the Commissioner the tax which he should have withheld as if it were tax due and payable by him under Part VII of this Order. (Amended K.O-I-C. 1/1976; A.11/1985; A.7/1989; replaced A.6/2000.)

Withholding tax on payments to non-resident persons. 59A (1) For the purposes of this section — “Swaziland source services contract” means a contract (other than an employment contract) — (a) under which the principal purpose of the contract is the performance of services which gives rise to Swaziland-source income; and (b) where any goods supplied under the contract are only incidental to that purpose; “Non-resident person” has the meaning assigned to it under section 59(1). (2) A non-resident person shall be liable to withholding tax at the rate of fifteen per cent on the gross amount of any payment derived by the non-resident under a Swaziland source services contract. (3) Subsection (1) shall not apply to a royalty or management charge subject to withholding tax under section 32B or payments subject to withholding under section 59. (4) Any person (the payer) who makes any payment to any other person (the payee) referred to in subsection (2) shall withhold tax at the rate of fifteen per cent of the gross amount and shall issue a statement to the payee showing the gross amount of payment due and the rate and amount of tax withheld. (5) Every person who withholds tax in accordance with subsection (4) shall, within fifteen days from the date of payment, remit to the Commissioner, the amount of tax so withheld or deducted. (6) Where tax has been withheld under this section from a payment made to a non-resident person the withholding tax is a final tax and — (a) no further tax liability shall be imposed upon the taxpayer in respect of the income to which the tax relates; and (b) the income shall not be aggregate with the other income of the taxpayer for the purposes of ascertaining taxable income; and (c) no deduction shall be allowed for any expenditure or losses actually incurred in deriving the income; and (d) no refund of tax shall be made in respect of the income. 324

(7) Every person making any payment to which this section applies shall maintain, and keep available for the period specified under section 33(16) for inspection by the Commissioner, records showing, in relation to each year of assessment — (a) payments made to the non-resident persons; and (b) tax withheld from such payments. (8) Every person (the payer) to whom this section applies shall within thirty days after the end of the year of assessment or within such further time as the Commissioner may allow, furnish to the Commissioner a return showing — (a) the amounts paid or payable to the non-resident person; (b) the amounts of tax withheld; and (c) such other information as the Commissioner may, in writing, by notice or other means, require. (9) Where any person who is required to withhold tax from any payment made by him, fails to withhold such tax or having withheld such tax fails to remit such tax to the Commissioner, as required, shall, in addition to any penalty for which he may be liable under section 66, be personally liable to pay to the Commissioner the amount of tax, which he failed to withhold or remit, as if it were tax due and payable by him under Part VII of this Order. (Added A.6/2000.)

Persons by whom the tax is payable.

60. Subject to this Order, the taxes leviable shall be payable — (a) by the representative taxpayer in respect of any income received or controlled by him in his representative capacity; (b) in respect of every other income and in all other cases, but subject to section 59, by the person by whom the income is received or to whom or in whose favour it accrues or is deemed to accrue or who is legally entitled to the receipt thereof: Provided that any person who is required under the Order to include in his income any income which has been received by or in favour of his minor child shall be entitled to recover from the funds held by or on behalf of such child such proportion of the taxation paid by him under this Order as is due to the inclusion in his income of the income of such child.

Recovery of tax.

61. (1) Any tax, (including any interest or penalty payable to the Commissioner under this Order) shall, when it becomes due or is payable, be deemed to be a debt due to the Government and shall be payable to the Commissioner in the manner and at the place prescribed. (2) If any person fails to pay any tax when it becomes due or is payable by him, the Commissioner may file with the clerk or registrar of any court a statement certified by him as correct and setting forth the amount of the tax so due or payable by such person, and such statement shall thereupon have all the effects of, and any proceedings may be taken thereon, as if it were a civil judgment lawfully given in such court in favour of the Commissioner for a liquid debt of the amount specified in the statement. (3) Notwithstanding anything in the Magistrate’s Court Act No. 66 of 1938 a statement for any amount whatsoever may be filed in terms of subsection (2) with the clerk of a Magistrate’s Court having jurisdiction in respect of the person by whom such amount is payable in accordance with this Order. (4) (Deleted A.6/1994.) (5) So much of any tax payable by any person under this Order as is due to the inclusion in his income of any income deemed to have been received by him or to be his income, as the case may be, in terms of sections 11(3), (4), (5) or (6) may be recovered from the assets by which the income so included was produced. (6) Notwithstanding the provisions of section 12, the Minister may remit, wholly or in part any tax payable by any person, in terms of this Order if he is satisfied that it will be just and equitable to do so. (Amended A.6/1996.)

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Tax to be a liquid debt.

62. (1) Proceedings in any court for the recovery of any tax shall be deemed to be proceedings for the recovery of a liquid debt. (2) It shall not be competent for any person in any proceedings in any court for the recovery of any tax to question the correctness of the assessment or any certified extract therefrom.

Conclusive evidence of making of assessment.

63. The production of any document under the hand of the Commissioner purporting to be a copy of or extract from any assessment shall be conclusive evidence of the making of the assessment and, except in the case of proceedings on appeal against the assessment, shall be conclusive evidence that the amount and all the particulars of such assessment appearing in such document are correct.

PART VIII

MISCELLANEOUS

Refunds.

64. (1) If it is proved to the satisfaction of the Commissioner that any amount paid by a taxpayer was in excess of the amount properly chargeable under this Order, the Commissioner may authorise a refund to such taxpayer of any tax overpaid: Provided that no amount paid in respect of an assessment made in accordance with the practice generally prevailing at the time when such assessment was made and accepted by the taxpayer shall be deemed to have been otherwise than properly so chargeable. (2) The Commissioner shall not authorise any refund under this section unless the claim therefor is made within three years after the date when the assessment was made.

Transactions, operations or schemes for purposes of avoiding or postponing liability for or reducing amounts of taxes on income.

65. (1) If any transaction, operation or scheme (whether entered into or carried out before or after the commencement of this Order, including a transaction, operation or scheme involving the alienation of property) has been entered into or carried out which has the effect of avoiding or postponing liability for any tax, duty or levy on income (including any such tax, duty or levy imposed by any previous law), or of reducing the amount thereof, and which, in the opinion of the Commissioner, having regard to the circumstances under which the transaction, operation or scheme was entered into or carried out — (a) was entered into or carried out by means or in a manner which would not normally be employed in the entering into or carrying out of a transaction, operation or scheme of the nature of the transaction, operation or scheme in question; or (b) has created rights or obligations which would not normally be created between persons dealing at arm’s length under any transaction, operation or scheme of the nature of the transaction, operation or scheme in question; and the Commissioner is of the opinion that the avoidance or the postponement of such liability, or the reduction of the amount of such liability was the sole or one of the main purposes of the transaction, operation or scheme, the Commissioner shall determine the liability for any tax, duty or levy on income and the amount thereof as if the transaction, operation or scheme had not been entered into or carried out or in such manner as in the circumstances of the case he deems appropriate for the prevention or diminution of such avoidance, postponement or reduction. (2) If the Commissioner is satisfied that any agreement or any change in the shareholding of a company, as a direct or indirect result of which income has been received by or has accrued to such company during any year of assessment, has, at any time before or after the commencement of this Order, been entered into or effected by any person solely or mainly for the purpose of utilising any assessed loss or any balance of assessed loss incurred by the company in order to avoid liability

326 on the part of such company or any other person for the payment of any tax, duty or levy on income, or to reduce the amount thereof, the set-off of any such assessed loss or balance of assessed loss against any such income shall be disallowed. (3) For the purposes of subsection (1), any transaction, operation or scheme, whether entered into or carried out before or after the commencement of this Order, whereby any person, other than a company, who is ordinarily resident or carrying on business in Swaziland, has disposed of shares held by such person or such company in any company registered or incorporated in Swaziland to any person, other than a company, not ordinarily resident nor carrying on business in Swaziland or to any company registered outside Swaziland, shall, unless it is proved to the satisfaction of the Commissioner that the parties are independent persons dealing at arm’s length with each other, be deemed to be a transaction, an operation or a scheme entered into or carried out by means or in a manner not normally employed in the entering into or carrying out of such transaction, operation or scheme in question. (4) Any decision of the Commissioner under subsection (1), (2) or (3) shall be subject to objection and appeal, and if in any proceedings relating thereto it is proved that the transaction, operation, scheme, agreement or change in shareholding in question would result in the avoidance or the postponement of liability for payment of any tax, duty or levy on income or in the reduction of the amount thereof, it shall be presumed, until the contrary is proved — (a) in the case of any such transaction, operation or scheme, that its sole or one of its main purposes was the avoidance or the postponement of such liability or the reduction of the amount of such liability; or (b) in the case of any such agreement or change in shareholding, that it has been entered into or effected solely or mainly for the purpose of utilising the assessed loss or balance of assessed loss in question in order to avoid or postpone such liability or to reduce the amount thereof.

Offences.

66. (1) A person shall be guilty of an offence and liable on conviction to a fine of one thousand Emalangeni or in or in default of payment thereof to imprisonment for twelve months, if he — (Amended A.11/1985; A.7/1992.) (a) fails or neglects to furnish, file or submit any return or document as and when required by this Order; (b) without just cause shown by him, refuses or neglects to furnish any information or reply to or to attend and give evidence as and when required by the Commissioner or any officer duly authorised by him, or to answer truly and fully any questions put to him, or to produce any books or papers required of him by the Commissioner or any such officer; (c) obstructs or hinders any officer in the discharge of his duties under this Order; (d) fails to show in any return made by him any portion of the gross income received by or accrued to or in favour of himself or fails to disclose to the Commissioner when making such return any material facts which should have been disclosed; (e) fails to show in any return prepared or rendered by him on behalf of any other person any portion of the gross income received by or accrued to or in favour of such other person or fails to disclose to the Commissioner, when preparing or making such return, any facts which if so disclosed, might result in increased taxation; (f) fails to keep a proper record of his transaction as required by section 33(16); (g) not being a person whose gross income consists solely of salary, wages or similar compensation for personal service, without just cause shown by him, fails to retain for a period of five years from the date of the last entry therein all ledgers, cash books, journals, cheque books, bank statements, invoices, stock lists and all other books of accounts relating to any trade carried on by him and recording the details from which his returns for the assessment of taxes under this Order or the repealed Act prepared; (h) submits or furnishes a false certificate or statement under section 34; (i) fails to notify the Commissioner or to deduct and account for tax under section 59; or (j) fails to withhold and account for tax under section 32B; (Added A.6/2000.) (k) fails to withhold and account for tax under section 32C; or (Added A.6/2000.) (l) fails to withhold and account for tax under section 59A. (Added A.6/2000.)

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(2) Any person who has been convicted under subsection (1) of failing to furnish any return, information or reply who thereafter fails within any period deemed by the Commissioner to be reasonable and of which notice has been given to him by the Commissioner, to furnish the return, information or reply in respect of which the offence was committed, shall be guilty of an offence and liable on conviction to a fine of fifty Emalangeni for each day during which such default continues or to imprisonment for three months. (Amended A.11/1985; A.7/1992.) (3) A person shall be guilty of an offence and liable on conviction to a fine of five thousand Emalangeni or imprisonment for two years or both, if he with intent to evade or to assist any other person to evade assessment or taxation — (Amended A.11/1985; A.7/1992.) (a) makes or causes or allows to be made any false statement or entry in any return rendered in terms of this Order or signs any statement or return so rendered without reasonable grounds for believing it to be true; (b) gives any false answer, whether orally or in writing, to any request for information made under this Order by the Commissioner or any person duly authorised by him or any officer referred to in section 4; (c) prepares or maintains or authorises the preparation or maintenance of any false books of account or other records or falsifies or authorises the falsification of any books of account or records; or (d) makes use of any fraud, art or contrivance whatsoever, or authorises the use of any such fraud, art or contrivance. (4) If in any proceedings under this section it is proved that any false statement or entry is made in any return rendered under this Order by or on behalf of any taxpayer or in any books of account or other records of any taxpayer, such taxpayer shall be presumed, until the contrary is proved, to have made or to have caused or allowed to be made such false statement or entry with intent to evade assessment or taxation, and any other person who made any such false statement or entry shall be presumed, until the contrary is proved, to have made such false statement or entry with intent to assist the taxpayer to evade assessment or taxation.

Authentication and service of documents.

67. (1) Every form, notice, demand or other document issued or given by or on behalf of the Commissioner or other officer under this Order shall be sufficiently authenticated if the name of the Commissioner or officer by whom it is issued or given is stamped or printed thereon. (2) Any notice required or authorised under this Order to be served upon any person shall be sufficiently and effectively served — (a) if personally served upon him; or (b) if left at his usual or last place of abode or office or place of business in Swaziland; or (c) if sent in a registered letter addressed to such place of abode, office or place of business or to his usual or last known postal address: (Amended A.9/1988.) Provided that in the case of a company, it shall be sufficiently and effectively served if personally served on the public officer of the company or delivered to him or left at the company’s address for service under this Order, or, if the company has lodged no address for service as required by this Order, then if the notice is left at or sent in a registered letter by post addressed to any office of the company in Swaziland or any premises therein where it carries on business.

Double taxation agreements.

68. (1) The Minister may enter into an agreement on behalf of the Government of Swaziland with the Government of any other country with a view to the prevention, mitigation or discontinuance of the levying under the laws of Swaziland and of the other country of tax on income in respect of the same income or to the rendering of reciprocal assistance in the administration of and in the collection of taxes under the tax laws of Swaziland and of the other country relating to income. (2) As soon as practical after the conclusion of any such agreement the Minister shall by notice in the Gazette publish a copy thereof, whereupon the terms and conditions of such agreement shall as far as they relate to immunity, exemption or relief in respect of the Swaziland tax on income have effect as if enacted in this Order, but only if and for so long as such terms and conditions as far as they relate to immunity, exemption or relief in respect of such tax levied or leviable in the other country have the effect of law in such other country. 328

(3) The Minister may at any time revoke any notice under subsection (2) by a further notice in the Gazette, and the agreement notified in such earlier notice shall cease to have effect upon a date fixed in such later notice, but the revocation of any notice shall not affect the validity of anything previously done thereunder. (4) This section shall apply to any agreement of the kind referred to in subsection (1) which was in force at the date of the commencement of this Order. (5) Notwithstanding section 5, there may be disclosed to any authorised officer of the country mentioned in any notice issued in terms of subsection (2), the facts, knowledge of which is necessary to enable it to be determined whether immunity, exemption or relief ought to be given or which it is necessary to disclose or to render or receive any assistance in accordance with the arrangements notified in such notice.

Regulations.

69. (1) The Minister may make regulations for all or any of the following purposes — (a) prescribing the duties of all persons engaged or employed in the administration of this Order; (b) defining the limits of areas within which such persons are to act; (c) prescribing the nature of the accounts to be rendered by any taxpayer in support of any return rendered under this Order and the manner in which such accounts shall be authenticated; (d) providing that, to avoid duplicate payment in Swaziland in any case in respect of the same year or period, the Commissioner may make such allowance or refund as he shall deem just and in such manner as may be prescribed; (e) generally for giving effect to the purposes of this Order. (2) (a) Notwithstanding any other provisions of this Order, where the Minister is satisfied that a new business is beneficial to the development of the economy, he may, with the prior consent of Cabinet, nominate such business as a development enterprise, and he may issue an order, known as “development approval order” in respect of such business, granting additional tax concessions to such business; (b) (i) Any person seeking tax concession under this subsection shall, prior to the commencement of business, apply to the Minister in a manner prescribed by him; (ii) The Minister may, upon examination of such application, grant or refuse to grant, in writing, a tax concession for the purposes of this subsection. (iii) The Minister’s decision under paragraph (ii) shall be final. (c) A development approval order may be issued subject to such. conditions, and for such period of time, as the Minister deems fit; (d) The Minister shall, within twenty one ‘days of the issue of a development order under paragraph (a), cause to be published, by notice in the Gazette, the name and address of the business nominated as a development enterprise under paragraph (a); (e) The Minister may, at any time, with the concurrence of Cabinet, amend or revoke a development approval order issued in terms of this subsection: Provided that where the Minister has cause to revoke a development approval order, he shall, within a period of twenty one days, cause such revocation to be published, by notice, in the Gazette. ‘ (f) Paragraphs (a) to (e) are deemed to have come into effect from 1st July, 1984. (Replaced A.9/1988.) (3) (a) Notwithstanding any other provision contained in this Order or in any other law, the Minister may, by notice published in the Gazette, make regulations requiring persons to obtain a tax clearance certificate for the purposes mentioned in such regulations. (b) Every notice, published under subsection (a), shall be submitted for the approval of Parliament, within fifteen days of the notice being made and if Parliament is not meeting, within fifteen days after it next meets.

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(c) If any such notice is not submitted to Parliament within the time specified in subsection (b), or, if so submitted, is not approved by Parliament, the notice shall thereupon lapse but without detracting from the validity of such notice before it so lapsed. (d) A person requiring a tax clearance certificate shall apply for such certificate either by himself or through his representative or agent to the Commissioner and a certificate granted under this section shall state that no tax is outstanding against the person or that satisfactory arrangements have been made by such person with the Commissioner for payment of outstanding tax: Provided that, in addition to any other reasons, the Commissioner may refuse to issue the certificate if the taxpayer has not rendered returns of income in respect of any year of assessment or part thereof. (Added A.11/1985.)

Commissioner’s annual report.

69bis. The Commissioner shall, not later than six months after the end of each financial year, prepare and submit to the Minister, an annual report setting out information relating to the operation of this Order during that financial year and such other information as the Minister may require (Added A.9/1979.)

Repeal.

70. The Income Tax (Consolidation) Act, No. 84 of 1959, is hereby repealed: Provided that any tax or other amount which but for such repeal would have been capable of being levied, assessed or recovered and which has not been levied, assessed or recovered at the commencement of this Order, and all notices and returns issued or published in connection therewith, may be levied, assessed, recovered, issued or published as if such repeal had not been effected: Provided further that paragraphs 3, 4, 5 and 11(2) of the First Schedule to the repealed Act shall continue to apply to any farmer to whom paragraph 2 of the First Schedule hereto applies.

FIRST SCHEDULE

COMPUTATION OF TAXABLE INCOME DERIVED FROM PASTORAL, AGRICULTURAL, PLANTATION OR OTHER FARMING OPERATIONS (Under section 10)

1. For the purposes of this Schedule “farmer” means any person carrying on pastoral, agricultural, plantation or other farming operations.

2. (1) Every farmer who, in accordance with paragraph 2 of the First Schedule to the repealed Proclamation exercised an option not to have the values of livestock and produce held by him and not disposed of at the beginning and end of each year of assessment taken into account in the determination of the taxable income derived by him from farming shall, unless he elects otherwise, not have such values so taken into account. (2) Every farmer (other than a company) who commences or recommences farming operations on or after 1st July, 1975 and who has not in respect of such farming operations previously exercised an option whether the values of livestock and produce held by him and not disposed of at the beginning and end of each year of assessment shall or shall not be taken into account in the determination of the taxable income derived by him from such farming operations shall be entitled to exercise such option and every such farmer shall, unless he elects otherwise, not have such values so taken into account. (3) Paragraphs 3, 4, 5 and 11(2) of the First Schedule to the repealed Proclamation shall mutatis mutandis continue to apply to the determination of the taxable income derived from farming operations by any farmer who does not exercise his option under this paragraph and elect otherwise. (Amended K.O-I-C. 6/1977.)

3. Every farmer, other than a farmer to whom paragraph 2 applies shall include in his return rendered under section 33 the value of all livestock and produce held and not disposed of at the beginning and end of the year of assessment. (Amended K.O-I-C. 6/1977.)

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Provided that the values of all livestock and produce held by him at the beginning of the year of assessment 1976 to be included in the return for that year shall be the values included in the assessment at the end of the preceding year of assessment. (Added K.O-I-C. 6/1977.)

4. Subject to paragraph 3, the standard values to be placed upon livestock (other than pedigree livestock acquired for breeding only) whether acquired by purchase or natural increase, held by any farmer at the beginning and end of a year of assessment shall be the standard values applicable to such livestock as are set out in the table hereunder.

Standard Value Description of livestock Emalangeni

Cattle: Bulls 720 Oxen 440 Cows 440 Tollies & heifers 2 year 280 Tollies & heifers 1 year 200 Calves under 1 year 120

Sheep: Wether 60 Rams 100 Ewes 40 Lambs 10

Goats: Fully grown 40 Kids under 1 year 10

Horses: Stallions 4 years and over 600 Mares 4 years and over 400 Geldings 3 years and over 300 Colts and fillies 3 years 300 Colts and fillies 2 years 200 Colts and fillies 1 year 150 Foals under 1 year 60

Donkeys: Jacks over 3 years 15 Jacks under 3 years 10 Jennies over 3 years 15 Jennies over 3 years 10 Foals under 1 year 5

Mules: Over 4 years 300 3 years to 4 years 200 2 years to 3 years 150 Under 2 years 60

Pigs: Over 12 months 250 Under l2months 50

Poultry: Over 9 months 5 (Amended K.O-I-C. 6/1997; Replaced A.7/1992.)

5. Subject to paragraph 3, the values to be placed upon pedigree livestock acquired for breeding only and held by any farmer at the beginning and end of a year of assessment shall be —

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(i) in respect of pedigree livestock acquired after 30th June, 1975 for breeding only and at the date of purchase such livestock acquired during such year of assessment, the purchase price; (ii) in respect of other pedigree livestock acquired for breeding only and which is older than 4 years the purchase price less an amount calculated for each year of assessment during which such livestock has been held and has not been disposed of, equal to twenty per centum of the purchase price: Provided that the aggregate of the amounts allowed under this sub-paragraph in respect of any one animal shall not exceed the purchase price of such animal. (Amended K.O-I-C. 6/1977.)

5bis. If as a result of the application of the standard values fixed by paragraph 4 the taxable income of any farmer has been increased for the year of assessment ended 30th June, 1993 such increased taxable income is directly attributable to the standard values applicable as at the 30th June, 1993 shall be exempted from taxation: (Amended A.7/1992.) Provided that if as a result of the application of the standard values fixed by paragraph 4 the assessed loss of any farmer is converted into a taxable income which is directly attributable to such increased standard values only so much of the increased taxable income as is in the excess of the assessed loss shall be exempted from taxation. (Added K.O-I-C. 6/1977.)

6. The value to be placed upon produce included in any return shall be such fair and reasonable value as the Commissioner may determine.

7. Livestock or produce donated or disposed of otherwise than by sale and livestock or produce acquired otherwise than by purchase or natural increase shall be brought into account at such values as the Commissioner may determine.

8. (1) Subject to sub-paragraphs (2), (3), (4), (5) and (6), there shall be allowable as deductions in the determination of the taxable income derived by any farmer, the expenditure incurred by him during the year of assessment in respect of — (a) dipping tanks; (b) dams, water-furrows, irrigation schemes, wells, boreholes and pumping plants; (c) fences; (d) the eradication of noxious plants; (e) the prevention of soil erosion; (f) the erection of buildings used in connection with farming operations other than those used for the domestic purposes of persons who are not employees of such farmer; (g) the establishment of orchards and vineyards; (h) the building of roads and bridges used in connection with farming operations; (i) the carrying of electric power from the main transmission lines to the farm apparatus, other than apparatus used for domestic purposes in any house not covered by item (f). (2) No deduction under section 14(1)(c), (d) and (g) shall be allowed in respect of any machinery, articles or plant for which a deduction under sub-paragraph (1) hereof or the corresponding provisions of any previous income tax law has been allowed. (3) The total amount allowable as deductions to any farmer under sub-paragraph (1) in any year of assessment shall not exceed an amount equal to thirty per cent of the gross income derived by him from farming operations during that year of assessment: Provided that if in the year of assessment ended on the thirtieth day of June, 1975 or any year of assessment thereafter any amount has been disallowed under the corresponding provisions of the repealed Act or under this sub-paragraph such amount shall be carried forward and added to the expenditure to which this paragraph applies incurred in the succeeding year. (4) For the purposes of this paragraph “employees” means in relation to any farmer, persons employed by such farmer in connection with his farming operations, but does not include his relatives or, if the farmer is a company, the shareholders (or the relatives of shareholders) in such company or in any company which is associated with it by virtue of

332 shareholding, other than persons who held all their shares in such company solely because they are employed by it and who will in terms of its articles of association not be entitled to hold those shares after they cease to be so employed. (5) The aggregate of all the deductions allowed under sub-paragraph (1)(f) to any farmer in respect of the erection of any buildings used for the domestic purposes of any one of his employees shall not exceed the sum of sixty thousand Emalangeni. (Amended A.11/1985; A.7/1989; A.7/1992.) (6) If in any year of assessment any building in relation to which a deduction has been allowed to any farmer under sub-paragraph (1)(f), whether in the current or any previous year of assessment, is used for the domestic purposes of any person other than an employee of such farmer, there shall be included in the income of such farmer, for the current year of assessment the amount of such deduction less one-tenth of such amount, in respect of each completed period of one year, but not exceeding ten years, during which such building was used by such farmer in connection with his farming operations, other than for the domestic purposes of persons who are not his employees.

9. (1) If it is proved to the satisfaction of the Commissioner — (a) that any farmer has in any year of assessment sold livestock on account of drought or stock disease; and (b) that such farmer has within two years after the close of such year of assessment purchased livestock to replace the livestock so sold; the cost of the livestock so purchased shall, notwithstanding anything in this Schedule, be allowed, at the option of such farmer, as a deduction in the determination of his taxable income for such year of assessment: Provided that the claim for such deduction is made within three years after the close of such year of assessment. (2) The cost of livestock so allowed as a deduction shall not be allowed as a deduction in the year of assessment in which the purchases are made. (3) Every farmer who desires to claim a deduction in terms of sub-paragraph (1) shall with his return of income for the year of assessment in which he sold livestock on account of conditions of drought or stock disease, notify the Commissioner accordingly and furnish full particulars in regard to the livestock so sold. (4) Notwithstanding anything in this paragraph the Commissioner shall, until proof has been submitted to him as provided in sub-paragraph (1)(b), assess and recover any tax payable by a farmer in respect of any year of assessment in which livestock has been so sold as if the provision of such sub-paragraph had not been enacted: Provided that if proof is submitted to the satisfaction of the Commissioner in terms of sub-paragraph (1), he shall revise the assessment concerned, and refund the farmer so much of the amount paid by him as exceeds the amount found to be payable after allowing the deduction referred to in such paragraph.

10. (1) Any amount received by or accrued to a farmer in respect of the disposal of a plantation shall, whether such plantation is disposed of separately or with the land on which it is growing, be deemed not to be a receipt or accrual of a capital nature and shall form part of such farmer’s gross income. (2) If a plantation is disposed of by a farmer with the land on which it is growing the amount of be included in such farmer’s gross income in terms of sub-paragraph (1) shall — (a) if the amount representing the consideration payable in respect of the disposal of the plantation is agreed to between the parties to the transaction, be the amount so agreed to; or (b) if there is no such agreement between the parties, be such portion of the total consideration payable in respect of the disposal of the land and the plantation as in the opinion of the Commissioner represents the consideration payable for the plantation.

11. (1) In the determination of the taxable income of any farmer there shall be allowed as a deduction — (a) any expenditure incurred by such farmer during the year of assessment in respect of the establishment and maintenance of a plantation; (b) any expenditure incurred by such farmer prior to the first day of July, 1949, in respect of the establishment and maintenance of any plantation or the cost of acquisition of any plantation purchased by such farmer whether before or after the first day of July, 1949: Provided that —

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(i) any deductions allowed under this item in respect of any plantation shall not in respect of any year of assessment exceed the gross income derived by such farmer in such year for such plantation; (ii) the aggregate of the deductions allowed in terms of this item or by virtue of any other provision of this or any previous law, in respect of plantations shall not exceed the amount of such expenditure or such cost of acquisition. (2) For the purpose of calculating the cost of acquisition of any plantation the pro-visions of paragraph 10(2) shall apply mutatis mutandis in the case of a plantation acquired by any farmer with the land on which it is growing. (3) For the purpose only of calculating the rates of normal tax payable in respect of any year of assessment by a farmer whose income for such year includes income derived from the disposal of a plantation or forest produce there shall (if the Commissioner is satisfied that such disposal forms part of the normal farming operations of the farmer concerned) be deducted from the taxable income of such farmer in the amount by which the taxable income derived by him in such year from the disposal of a plantation and forest produce exceeds the annual average taxable income derived by him from such source over the three years of assessment immediately preceding such year of assessment: Provided that — (a) the Commissioner’s determination as to what portion of a farmer’s taxable income is derived from the disposal of plantation and forest produce shall be final and conclusive; (b) in no case shall the rate of tax be less than that applicable to the first Emalangeni of taxable income and that nothing in this paragraph shall be construed as relieving any farmer from liability for taxation under this Order upon any portion of his taxable income.

12. For the purposes of paragraphs 10 and 11 —

“forest produce” means anything which is derived from trees and includes trees, timber, wood, bark, leaves, seeds, gum, resin and sap.

“plantation” means any forest of artificially established trees as ordinarily under-stood and includes any natural extension of such trees.

SECOND SCHEDULE

AMOUNTS TO BE DEDUCTED OR WITHHELD BY EMPLOYERS IN RESPECT OF NORMAL TAX (Under section 58)

PART I

Interpretation.

1. In this schedule unless the context otherwise requires —

“employee” means any person (other than a company) who in respect of an employment, office or appointment, receives remuneration from an employer or to whom remuneration accrues;

“employees’ tax” means the tax which an employer is required or requested to deduct or withhold from remuneration paid or payable to an employee;

“employees’ tax certificate” means a certificate required to be issued by an employer in terms of paragraph 13;

“employer” means any authority or person (including any person acting in a fiduciary capacity or in his capacity as a trustee in an insolvent estate, an executor or an administrator of a benefit fund, pension fund, provident fund, retirement annuity fund or any other fund) who pays or is liable to pay to any person other than a company any amount by way of remuneration, and any company;

“remuneration” means any amount of income which is paid or is payable to any person by way of any salary, leave pay, allowance, wage, overtime pay, bonus, commission, fee, emolument, pension, superannuation

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allowance, retiring allowance or stipend, and whether or not in respect of services rendered, including an amount referred to in section 7(a), (b) or (c), or the annual value of such benefit or benefits referred to in section 7(f) as the Commissioner may, from time to time, determine in respect of a year of assessment — (Amended A.5/1988.) (a) any amount paid or payable to any person in respect of services rendered or to be rendered by him as a domestic or private servant if such amount does not exceed the amounts qualifying for exemption under section 12(3); (Amended A.5/1988.) (b) any annuity under an order of divorce or decree of judicial separation or under any agreement of separation;

“representative employer” means in the case of — (a) any company, the public officer of such company, or, in the event of such company being placed in liquidation or under judicial manage-ment, the liquidator or judicial manager, as the case may be; (b) any local authority or like authority or any body corporate or unincorporate (other than a company or a partnership) any manager, secretary, officer or other person responsible for paying remuneration on behalf of such council, board, authority or body; (c) a person under legal disability, any guardian, curator, administrator or other person having the management or control of the affairs of the person under legal disability; or (d) any employer who is not ordinarily resident in Swaziland, any agent of such employer having authority to pay remuneration: Provided that nothing in this definition shall be construed as relieving any person from any liability, responsibility or duty imposed upon him by this Schedule.

PART II

EMPLOYEES’ TAX

EMPLOYERS TO DEDUCT TAX

2. (1) Every person (whether or not registered as an employer under paragraph 15) who pays or becomes liable to pay any amount by way of remuneration to any employee on or after the first day of March, 1967, shall, unless the Commissioner has granted authority to the contrary, deduct or withhold from such amount by way of employees’ tax an amount which shall be determined as provided in paragraphs 9, 10, 11 or 12, as the case may be, in respect of the liability for normal tax of such employee, and shall pay the amount so deducted or withheld to the Commissioner within seven days after the end of the month during which the amount was deducted or withheld, or in the case of a person who ceases to be an employer, within seven days after the day after which he ceases to be an employer, or in either case within such further period as the Commissioner may approve. (Amended A.6/1994.) (2) An employer may, at the written request of any employee, deduct or withhold from any amount of remuneration an amount by way of employees’ tax greater than that required to be deducted or withheld in terms of sub-paragraph (1), and shall remit such amount to the Commissioner, and the provisions of this Schedule relating to employees’ tax shall, mutatis mutandis, apply in respect of such amount. (3) For the purposes of this paragraph, “month” means calendar month. (4) An amount required to be deducted or withheld from any amount of remuneration under this Schedule by way of employees’ tax shall be calculated on the balance of such amount of remuneration remaining after deducting any current contribution by the employee concerned to any pension fund (excluding so much of such contribution to a pension fund not established by law as is made at a rate exceeding the sum specified in section 14(1)(i)) which is calculated with reference to such amount of remuneration or to a portion of such amount or to the period in respect of which the amount of remuneration is paid or payable and which the employer is, vis-a-vis the employee concerned, entitled or required to deduct or withhold from such amount of remuneration. (Amended A.6/1991.)

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3. (1) The liability of any employer to deduct or withhold any amount of employees’ tax in terms of paragraph 2 shall not be reduced or extinguished by reason of the fact that the employer has a right or is otherwise than in terms of any law under an obligation to deduct or withhold any other amount from the employees’ remuneration, and such right or obligation shall, notwithstanding anything in any other law, for all purposes be deemed to have reference only to the amount of the remuneration remaining after the amount of the employees’ tax referred to in such paragraph has been deducted or withheld. (2) Paragraph 2 shall apply in respect of all amounts payable by way of remuneration, notwithstanding any other law which provides that any such amount shall not be reduced or shall nto be subject to attachment.

4. Any amount required to be deducted or withheld in terms of paragraph 2 shall be a debt due to the Government, and the employer concerned shall save as otherwise provided, be absolutely liable for the due payment thereof the Commissioner.

5. (1) Subject to sub-paragraph (6), any employer who fails to deduct or withhold the full amount of employees’ tax as provided in paragraph 2 shall be personally liable for the payment to the Commissioner of the amount which he fails to deduct or withhold, and shall, subject to sub-paragraph (2) hereof, pay such amount to the Commissioner not later than the date on which payment should have been made if the employees’ tax had in fact been deducted or withheld in terms of paragraph 2. (2) If the employer has failed to deduct or withhold employees’ tax in terms of paragraph 2 and the Commissioner is satisfied that the failure was not due to an intent to postpone payment of the tax or to evade the employer’s obligations under this Schedule, the Commissioner may, if he is satisfied that there is a reasonable prospect of ultimately recovering the tax from the employee, absolve the employer from his liability under sub-paragraph (1). (3) An employer who has not been absolved from liability as provided in sub-paragraph (2) shall have a right of recovery against the employee in respect of the amount paid by the employer in terms of sub-paragraph (1) in respect of such employee, and such amount may in addition to any other right of recovery be deducted from future remuneration which may become payable by the employer to such employee, in such manner as the Commissioner may determine. (4) Until such time as an employee pays to his employer any amount which is due to the employer in terms of sub- paragraph (3), such employee shall not be entitled to receive from the employer an employees’ tax certificate in respect of such amount. (5) Any amount which an employer is required to pay in terms of sub-paragraph (1) and which he is entitled to recover from the employee in terms of sub-paragraph (3) shall, in so far as the employer only is concerned, be deemed to be a penalty due and payable by such employer. (6) Sub-paragraph (1) shall not apply in respect of any amount or any portion of any amount of employees’ tax which an employer has failed to deduct or withhold and in respect of which paragraph 17(3) applies.

6. (1) If an employer fails to pay any amount of employees’ tax for which he is liable within the period allowed for payment thereof in terms of paragraph 2 he shall, in addition to any other penalty or charge for which he may be liable under this Order, pay a penalty equal to twenty per centum of such amount. (Amended A.7/1992.) (2) The Commissioner may, if he is satisfied that the employer’s failure to pay the amount of employees’ tax was not due to an intent to postpone payment of such tax or otherwise evade his obligation under this Order and was not designed to enable the employee concerned to evade such employees’ obligations under this Order, remit the whole or any part of the penalty imposed under sub-paragraph (1). (3) The penalty imposed under sub-paragraph (1) shall be paid to the Commissioner when payment is made of the amount of employees’ tax to which it refers or within such further period as the Commissioner may approve.

7. Any agreement between an employer and an employee whereby the employee undertakes not to deduct or withhold employees’ tax shall be void.

8. An employee shall not be entitled to recover from an employer any amount deducted or withheld by the employer from the employees’ remuneration in terms of paragraph 2.

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Deduction tables.

9. (1) The Commissioner may from time to time, having regard to the rates of normal tax as fixed by law and to any other factors having a bearing upon the probable liability of taxpayers for those taxes prescribe deduction tables applicable to such classes of employees as he may determine, and the manner in which such tables shall be applied, and the amount of employees’ tax to be deducted from any amount of remuneration shall, subject to sub-paragraph (3) and paragraphs 10, 11 and 12 of this Schedule, be determined in accordance with such tables, or, if sub-paragraph (3) is applicable, in accordance with such sub-paragraph. (Amended A.6/1994.) (2) Any tables prescribed by the Commissioner in accordance with sub-paragraph (1) shall come into force on such date as may be notified by the Commissioner in the Gazette, and shall remain in force until withdrawn by the Commissioner. (3) The amount to be deducted or withheld in respect of employee’s tax from any lump sum to which the proviso to paragraph (b) of the definition of “gross income” applies or any other lump sum to which the employee is entitled by virtue of the employee’s agreement of employment, shall be ascertained by the employer from the Commissioner before paying out such lump sum, and the Commissioner’s determination of the amount to be so deducted or with-held shall be final. (Amended A.10/1991.)

10. (1) If the Commissioner is satisfied that the circumstances warrant a variation of the basis provided in paragraph 9 for the determination of amounts of employees’ tax to be deducted or withheld from remuneration of employees in the case of any employer, he may agree with such employer as to the basis of determination of such amounts to be applied by such employer, and the amounts to be deducted or withheld by such employer in terms of paragraph 2 shall, subject to paragraphs 11 and 12, be determined accordingly. (2) Any agreement made in terms of sub-paragraph (1) shall remain in force indefinitely, but the Commissioner or the employer concerned may give notice of termination thereof and upon the expiry of a period of three months from the date of such notice such agreement shall terminate.

11. In order to alleviate hardship to an employee due to illness or other circumstances or to correct any error in regard to the calculation of employees’ tax, whether arising from the furnishing to an employer by an employee of a false or incorrect return of personal particulars or otherwise, or if the employee has in terms of paragraph 12(2) applied to the Commissioner for the issue of a directive to his employer, to enable the employer to deduct or withhold the correct amount by way of employees’ tax, the Commissioner may, having regard to the circumstances of the case, issue a directive to the employer concerned authorising the employer to refrain from deducting or withholding any amount under paragraph 2 by way of employees’ tax from any remuneration due to the employee or to deduct or withhold by way of employees’ tax a specified amount or an amount to be determined in accordance with a specified rate or scale, and the employer shall comply with such directive.

11A. (1) When, at the end of the tax year, there becomes known the amount of remuneration received by or accruing to any employee who was in continuous employment with the same employer in respect of such year of assessment, the employer concerned shall calculate and determine the amount of normal tax for which such employee is actually liable in respect of such year of assessment, and, subject to the provisions of paragraph 2(4) and to the applicable normal tax rates as prescribed, make the required adjustments to the amount of employees’ tax deductible or withholdable in respect of such employee. (2) (i) Where at the end of any tax year, the employees’ tax actually deducted or withheld from any remuneration paid or payable by an employer to an employee during any tax year exceeds the amount required to be deducted or withheld in terms of subparagraph (1) above, the employer shall repay to such employee the amount of such excess. (ii) Any amount of employees’ tax which has been repaid by an employer to an employee under subparagraph (i) above may be deducted from any subsequent payment of employees’ tax due by the employer. (3) If the amount of employees’ tax actually deducted or withheld from any remuneration paid or payable by an employer to an employee during any tax year is less than the amount required to be deducted or withheld in terms of subparagraph (1), then the employer shall pay the shortfall to the Commissioner and recover such amount from the employee. (Added A.6/1994.) 337

Employees to furnish returns of personal particulars to employers.

12. (1) Subject to sub-paragraph (2), every employee shall furnish his employer with a return of personal particulars in such form as the Commissioner may prescribe, and shall furnish a fresh return within seven days of the date which any change in the particulars pre-viously furnished occurs: Provided that until a new return is received or a directive is received from the Commissioner in terms of paragraph 11, the employer shall regard the latest return submitted to him by the employee concerned as correct, and shall continue to determine the amounts to be deducted or withheld by way of employees’ tax in accordance with the particulars disclosed therein. (2) If for any reason an employee does not wish to furnish the return referred to in sub-paragraph (1), he may instead apply to the Commissioner in such form as the Commissioner may prescribe for the issue of a directive to his employer and in such case the Commissioner may in his discretion issue a directive to the employer as provided in paragraph 11. (3) If an employer has not at any time received any return of personal particulars whatsoever from an employee as required by sub-paragraph (1), or has not in respect of such employee received a directive from the Commissioner as provided in paragraph 11, he shall, until such return or directive is received, deduct or withhold employees’ tax under paragraph 9 or 10, as the case may be, at the rate applicable to a person who is not a married person and who is not entitled to have any child taken into account in the determination of the amount of employees’ tax to be deducted or withheld. (4) If the latest return of personal particulars furnished by any employee to his employer in terms of sub-paragraph (1) discloses that the employee is a divorced person the employer shall, until he has in respect of such employee received a directive from the Commissioner issued under paragraph 11, deduct or withhold employees’ tax under paragraph 9 or 10, as the case may be, at the rate applicable to a person who is not a married person and with due regard to the number of children of the employee disclosed by such return who will not have attained the age of eighteen years on the last day of the employees’ year of assessment during which the employees’ tax is deducted or withheld.

Furnishing and obtaining of employees’ tax certificates.

13. (1) Subject to paragraphs 5 and 17 every person who during any year of assessment deducts or withholds any amount by way of employees’ tax as required by paragraph 2 shall, within the time allowed by sub-paragraph (2) hereof, deliver to each employee or former employee to whom remuneration has during the period in question been paid or become due by such person, an employees’ tax certificate, in such form as the Commissioner may prescribe or approve, which shall show the total remuneration of such employee or former employee and the sum of the amounts of employees’ tax deducted or withheld by such person from such remuneration during such period, excluding any amount of remuneration or employees’ tax included in any other employees’ tax certificate issued by such person unless such other certificate has been surrendered to such person by the employee or former employee and has been cancelled by such person and dealt with by him as provided in sub-paragraph (10). (2) The employees’ tax certificate referred to in sub-paragraph (1) shall be delivered — (a) if the person who is required to deliver the certificate has not ceased to be an employer in relation to the employee concerned, within fourteen days after the end of the period to which the certificate relates; (b) if such person has ceased to be an employer in relation to the employee concerned but has continued to be an employer in relation to other employees within fourteen days of the date on which he has so ceased; (c) if such person has ceased to be an employer within seven days of the date on which he has so ceased; or (d) within such further period as the Commissioner may approve in any particular case. (3) For the purposes of sub-paragraph (2), a person shall, if the Commissioner having regard to the circumstances of the case so directs, be deemed not to have ceased to be an employer in relation to any of his casual employees who is likely from time to time to be re-employed by such person. (4) Notwithstanding sub-paragraphs (1) and (2), any person who has deducted or withheld employees’ tax from remuneration of any employee shall as and when required by the Commissioner deliver to such employee an employees’ tax certificate, in such form as the Commissioner may approve, which shall show the total remuneration of such employee or former employee and the sum of the amounts of employees’ tax deducted or withheld by such person from such 338 remuneration during any period specified by the Commissioner, but excluding any amount of remuneration or employees’ tax included in any other employees’ tax certificate issued by such person unless such other certificate has been surrendered to such person by the employee or former employee and has been cancelled by such person and dealt with by him as provided in sub-paragraph (10). (5) It shall be the duty of any employee or former employee who has not received an employees’ tax certificate within the time allowed by sub-paragraph (2) forthwith to apply to the employer for such certificate. (6) Every taxpayer shall, when rendering a return of income under section 33 attach to such return all employees’ tax certificates in his possession which disclose information in respect of the year of assessment to which the return relates. (7) It shall be sufficient compliance with sub-paragraph (1) or (4) in regard to the delivery of any employees’ tax certificate to any employee or former employee if such certificate is delivered to the employees’ authorised agent or the representative taxpayer in respect of the remuneration shown in such certificate or, if delivery cannot conveniently be effected by personal delivery, if such certificate is sent to the employee or former employee or such agent or representative taxpayer by registered post. (8) An employer may at the request of the employee or former employee issue a duplicate employees’ tax certificate, but any such duplicate shall be clearly marked as such and shall disclose full details of the original certificate. (9) Unless authorised thereto by the Commissioner no duplicate employees’ tax certificate may be issued by an employer otherwise than as provided in sub-paragraph (8). (10) Any cancelled or spoiled employees’ tax certificate shall not be destroyed by the employer concerned but shall be retained by him until the Commissioner requires it to be surrendered to him. (11) The Commissioner shall control the issue to employers of stocks of unused employees’ tax certificates and may prescribe conditions in regard to the manner in which such unused certificates may be used or as to the surrender of unused stocks of such certificates and every employ shall account to the Commissioner for used, unused, cancelled or spoiled certificates as and when required by the Commissioner. (12) In the case of any employer who has a mechanised accounting system the Commissioner may, subject to such conditions as he may impose, approve the use by such employer of employees’ tax certificates in a form other than the form prescribed for general use and, if any such employer fails to comply with the conditions imposed by the Commissioner, the Commissioner may withdraw his consent for the use of such certificates and the employer shall forthwith or from any date specified by the Commissioner cease to use such certificates, and shall within such period as the Commissioner may prescribe surrender to the Commissioner all unused stocks of such certificates. (13) Every person who ceases to be an employer shall, unless the Commissioner otherwise directs, within fourteen days of his ceasing to be an employer surrender to the Commissioner all unused employees’ tax certificates in his possession. (14) If any person fails to surrender any unused employees’ tax certificates as required by sub-paragraph (12) or (13), any officer engaged in carrying out his Order, who has in relation to such person been authorised thereto by the Commissioner by telegram or other writing, may, without previous notice, at any time during the day enter any premises whatsoever and on such premises search for and seize such certificates and, in carrying out such search, open or cause to be removed and open any article in which he suspects any such certificate to be contained. (15) For the purposes of this Schedule any employees’ tax certificate on which appears the name or any trade name of any employer shall, until the contrary is proved, be deemed to have been issued by such employer if such certificate is in a form approved by the Commissioner for general use and was supplied by the Commissioner to such employer for use by him or is in a form approved by the Commissioner under sub-paragraph (12) for use by such employer.

Employers to keep records and furnish returns.

14. (1) Every employer shall in respect of each employee maintain a record showing the amounts of remuneration paid or due by him to such employee and the amount of employees’ tax deducted or withheld from each such remuneration, and such record shall be retained by the employer and shall be available for scrutiny by the Commissioner.

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(2) Every employer shall when making any payment of employees’ tax submit to the Commissioner a declaration in such form as the Commissioner may approve showing, in addition to other information that may be required, the total amounts included in such payment in respect of employees resident in Swaziland and employees resident outside Swaziland. (3) Every employer shall — (a) in respect of each year of assessment; (b) if he ceases to carry on any business or other undertaking in respect of which he has paid or become liable to pay remuneration to any employee or otherwise ceases to be an employer, in respect of the period from the first day of July immediately preceding the date on which he has ceased to carry on such business or other undertaking or to be an employer, as the case may be, to the date on which he has so ceased to carry on such business or undertaking or to be an employer, as the case may be, within fourteen days after the end of the year of assessment or period in question, or within such longer time as the Commissioner may approve, render to the Commissioner a return, in such form as the Commissioner may approve, showing the names and addresses of all the persons who during such period were employees in relation to such employer and the total remuneration paid to or accrued to each employee in respect of such period and the total amount of employees’ tax deducted or withheld from the remuneration of each such employee during such period. (3A) Notwithstanding the provisions of paragraph 19(1)(i), any employer who fails to comply with the provisions of paragraph 14(3) shall, while such failure to comply continues, be liable to a penalty not exceeding thirty Emalangeni for each day during which the failure continues. (Added A.9/1988; A.7/1992.) (4) The Commissioner may call upon any employer to allow an auditor to examine his records to verify the accuracy with the employees’ tax certificates.

Registration of employers.

15. (1) Every person who becomes an employer after the date of commencement of this Order or who, being an employer before such date has not applied for registration under paragraph 15 of the Second Schedule to the repealed Act shall apply for registration in such form as the Commissioner may require within fourteen days of becoming an employer or within fourteen days of the date of commencement of this Order, as the case may be, or in either case within such further period as the Commissioner may allow. (2) Every person who has applied for registration under paragraph 15 of the Second Schedule to the repealed Act shall be deemed to be registered for the purpose of this paragraph. (3) Every person who has applied for registration under sub-paragraph (1) shall, within fourteen days after changing his address or ceasing to be an employer, notify the Commissioner in writing of his new address or of the fact of his having ceased to be an employer, as the case may be.

Liability of representative employers and others.

16. (1) Every representative employer shall as regards the remuneration which he pays or is liable to pay to any employee in his representative capacity, be subject in all respects to the same duties, responsibilities and liabilities under this Schedule as if such remuneration was remuneration paid or liable to be paid by him in his personal capacity. (2) Any employees’ tax or interest on employees’ tax or any penalty imposed under this Schedule shall be recoverable from the person who in terms of paragraph 11 is an employer by virtue of his having paid or become liable to pay remuneration in a fiduciary capacity, or in his capacity as a trustee in an insolvent estate, an executor, or an administrator of a benefit fund, pension fund, provident fund, retirement annuity fund or any other fund, or from the representative employer, but to the extent only of any assets belonging to the person, body, trust estate or fund represented or administered by him which may be in his possession or under his management, disposal or control, and sections 46 and 47 shall mutatis mutandis apply in the case of such first-mentioned person or representative employer, as if he were a representative taxpayer. (3) The executor of the estate of any deceased employer or the trustee of the insolvent estate of any employer shall fulfil such obligations of the deceased or insolvent employer under paragraphs 13 and 14 as arise in consequence of that

340 employer ceasing to be an employer because of his death or insolvency, or as have not been fulfilled by such employer before his death or insolvency.

PART III

GENERAL

Employees’ tax to be set off against tax liability.

17. (1) Subject to the provision of paragraph 11A, there shall be set off against the liability of the taxpayer, in respect of normal tax due by the taxpayer and payable under Part VII of this Order, the amounts of employees’ tax deducted or withheld by the taxpayer’s employer during any year of assessment for which the taxpayer’s liability for normal tax has been assessed by the Commissioner, and if — (Amended A.6/1994.) (a) the sum of such amounts of employees’ tax exceeds the amount of the taxpayer’s total liability for such taxes, the excess amount shall be refunded to the taxpayer; (b) in the case of any taxpayer, the taxpayer’s total liability for such tax exceeds the sum of such amounts of employees’ tax, the amount of the excess shall be payable by the taxpayer to the Commissioner. (2) The burden of proof that any amount of employees’ tax has been deducted or withheld by his employer shall be upon the taxpayer and any employees’ tax certificate shall be prima facie evidence that the amount of employees’ tax reflected therein has been deducted by the employer. (3) If the Commissioner is satisfied that the amount or any portion of the amount of employees’ tax shown in any employees’ tax certificate has not been deducted or withheld by the employer and the amount of employees’ tax shown in such tax certificate has been applied as provided in sub-paragraph (1), the employer and the employee shall be jointly and severally liable to pay the Commissioner the amounts which should not have been so applied and such amount shall be recoverable under this Order as if it were tax. (4) An employer who has, under sub-paragraph (3), paid the Commissioner an amount which has, but should not have, been applied under sub-paragraph (1), may, if the amount was shown or included in the certificate because fo a bona fide error, recover it form the employee concerned, and in such case sub-paragraph 5(3) shall, mutatis mutandis, apply. (5) No employees’ tax certificate shall be issued by the employer in respect of any amount recovered by him from the employee in terms of sub-paragraph (4), nor shall any such amount be included in any return rendered in terms of paragraph 14(3). (6) if the Commissioner is satisfied that the employee to whom an employees’ tax certificate refers was directly or indirectly responsible for an incorrect amount being shown on such certificate, he may absolve the employer from the liability imposed upon him by sub-paragraph (3), and in such case the employee shall be solely liable under that sub- paragraph.

18. No refund of any amount or employees’ tax shall be made to the taxpayer concerned otherwise than as provided in paragraph 17.

Offences.

19. (1) A person shall be guilty of an offence and liable on conviction to a fine of one thousand Emalangeni or imprisonment for twelve months, or both, if he — (Amended A.7/1992.) (a) makes or becomes liable to make any payment of remuneration and fails to deduct or withhold therefrom any amount of employees’ tax or to pay such amount to the Commissioner as and when required by paragraph 2; (b) uses or applies any amount deducted or withheld by him by way of employees’ tax for purposes other than the payment of such amount to the Commissioner; (c) makes or issues or causes to be made or issued or knowingly possesses or uses or causes to be used any employees’ tax certificate which is false;

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(d) without just cause shown by him, fails to comply with any directive issued to him by the Commissioner in terms of paragraphs 9(3) and 11; (Replaced A.6/1994.) (e) furnishes to his employer or the Commissioner a false or misleading return of personal particulars or gives any false information or misleads his employer in relation to any matter affecting the amount of employees’ tax to be deducted in his case; (f) fails or neglects to deliver to any employee or former employee any employees’ tax certificate as required by paragraph 13; (g) fails to comply with any conditions prescribed by the Commissioner in terms of paragraph 13(11) in regard to the manner in which employees’ tax certificates may be used or as to the surrender of unused stocks of such certificates, or to account for used, unused or spoiled employees’ tax certificates when required by the Commissioner under such paragraph or on ceasing to be an employer fails to surrender unused employees’ tax certificates in his possession as required by sub-paragraph (13) of such paragraph; (h) fails to comply with any condition prescribed by the Commissioner by which he is bound in terms of paragraph 13(12); (i) fails or neglects to maintain any record as required by paragraph 14 or to retain such record for a period of five years from the date of the last entry therein or to furnish to the Commissioner any declaration as required by such paragraph; (j) fails or neglects to apply to the Commissioner for registration as an employer as required by paragraph 15(1) or having so applied fails or neglects to notify the Commissioner of any change of address or the fact of his having ceased to be an employer as required by sub-paragraph (2) of such paragraph; (k) alters any employees’ tax certificate made or issued by any other person or authority or falsely pretends to be the employee named in any employees’ tax certificate or for his own advantage or benefit obtains credit with respect to or payment of the whole or any part of any amount of employees’ tax deducted or withheld from remuneration received by another person; or (l) not being an employer and without being duly authorised by any person who is an employer, issues or causes to be issued any document purporting to be an employees’ tax certificate. (2) For the purposes of sub-paragraph (1)(b), an amount which has been deducted or withheld by any person from remuneration shall, until the contrary is proved, be deemed to have been used or applied by such person for purposes other than the payment of such amount to the Commissioner if such amount is not paid to the Commissioner within the period allowed for payment under paragraph 2.

Recovery of employees’ tax, penalty, additional tax and interest.

20. Any amount of employees’ tax, penalty or additional tax payable in terms of this Schedule, and any amount of interest payable in terms of section 58 shall, when it becomes due or is payable, be a debt due to the Government and may be recovered by the Commissioner in the manner prescribed in section 61 for the recovery of tax and interest due or payable under this Order.

THIRD SCHEDULE (Replaced A.9/1988; A.6/1991; A.6/2000.)

RATES OF NORMAL TAX

PART I

For the purposes of section 6(3), the rates of tax to be levied in the year of assessment shall — (a) in the case of all companies, be thirty cents for each Lilangeni of taxable income; (b) in the case of persons (other than companies) as prescribed in Part II;

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(c) in the case of persons (other than companies) who, during the year of assessment were not ordinarily resident in Swaziland, the rate of tax to be levied shall not reduce the total tax payable below an amount equal — (i) to ten cents of each Lilangeni of his taxable income; and (ii) to three cents of each Lilangeni of such part where any part of his taxable income consists of pension; (d) in the case of a trustee, be thirty-three cents for each Lilangeni of taxable income; and (e) in the case of dividends received by or accrued to or in favour of any individual from any company shall be taxed at the rate of ten cents for each Lilangeni of taxable income.

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PART II

RATE OF NORMAL TAX IN THE CASE OF PERSONS OTHER THAN COMPANIES (Added A.11/1982; Amended A.11/1985; A.7/1989; Replaced A.7/1992; A.6/1994; A.6/2000.)

Taxable Income Rate of Tax Exceeds But does Not Exceed E E E

0 14 000 0% 14 000 20 000 12% of the excess over 14 000

20 000 30 000 720 +19% of the excess over 20 000

30 000 36 000 2 620 +26% of the excess over 30 000 36 000 41 800 33% of the excess over 36 000

FOURTH SCHEDULE (Added A.11/1985.)

PROVISIONAL PAYMENTS IN RESPECT OF NORMAL TAX (Under Section 58A)

Definitions.

1. For the purposes of this Schedule, unless the context otherwise requires —

“provisional tax” means any payment required to be made in terms of paragraph 2.

“provisional taxpayer” means — (a) any person (other than a company or a person referred to in sub-paragraph (1) of paragraph 3) who derives by way of income any amount which does not constitute remuneration in terms of the definition of that expression as contained in the Second Schedule to this Order. (b) Unless the Commissioner in a particular case otherwise directs, any director of a private company if such director is ordinarily resident in Swaziland or such company is managed and controlled or has its registered office in Swaziland. (c) Any company. (d) Any person who is notified by the Commissioner that he is a provisional taxpayer.

Payment of Provisional Tax.

2. (1) Every provisional taxpayer shall, in the manner provided in this Part, make payments (called provisional tax) to the Commissioner in respect of his liability for normal tax in respect of every year of assessment. (2) Where for the purpose of determining any amount of provisional tax required to be paid by any provisional taxpayer in respect of any year of assessment the liability of such taxpayer for normal tax is required to be estimated in respect of such year, such liability shall be deemed to be the amount of normal tax which, calculated at the relevant rate referred to in sub-paragraph (3), would be payable by the provisional taxpayer in respect of the amount of taxable income estimated by such taxpayer in terms of paragraph 4(1) during the period prescribed by this Schedule for the payment of the said amount of provisional tax, or any extension of such period granted in terms of paragraph 11(2), or if the amount so estimated has been increased by the Commissioner in terms of paragraph 4(3), the amount of normal tax which, calculated at the said rate, would be payable by the provisional taxpayer in respect of the amount of taxable income as so increased, or if the Commissioner has estimated the provisional taxpayer’s taxable income in terms of paragraph 4(2) the amount of normal

344 tax which, calculated at the said rate, would be payable by the provisional taxpayer in respect of the amount of taxable income so estimated. (3) For the purposes of any calculation of normal tax under sub-paragraph (2), the rate at which such tax is to be calculated shall be the relevant rate which on the date of payment of the provisional tax in question is in force in respect of the year of assessment in respect of which such provisional tax is required to be paid under this Schedule, or if at the said date the rate has not been fixed, the relevant rate in respect of that year foreshadowed by the Minister in his budget statement, or if at that date the rate has not been so fixed or so foreshadowed, the relevant rate which is in force in respect of the latest preceding year of assessment. (4) The Commissioner may from time to time, having regard to the prevailing rates of normal tax of foreshadowed by the Minister in his budget statement to the rebates applicable under section 8 of this Order, and to any other factors having bearing upon the probable liability of taxpayers for normal tax, prescribe tables for optional use by provisional taxpayers falling within any category specified by the Commissioner, or by provisional taxpayers generally for the purpose of estimating the liability of such taxpayers for normal tax, and the Commissioner may prescribe the manner in which such tables shall be applied. (5) Any tables prescribed by the Commissioner in accordance with sub-paragraph (4) shall come into force on such date as may be notified by the Commissioner in the Gazette and shall remain in force until withdrawn by the Commissioner. (6) Sub-paragraphs (2) and (3) shall not apply where the liability of a provisional taxpayer for normal tax is estimated in accordance with any tables prescribed for his use under sub-paragraph (4) and not withdrawn under sub- paragraph (5).

Exemptions.

3. There shall be exempt from payment of provisional tax in respect of any period in respect of which provisional tax would, but for this item, be payable; any person (other than a company or a director of a private company) who satisfies the Commissioner that apart from any taxable income which he may derive by way of remuneration, as defined in the Second Schedule to this Order, he will not during that period derive any taxable income in excess of one thousand Emalangeni.

Estimates of taxable income to be made by provisional taxpayers. 4. (1) (a) Every provisional taxpayer (other than a company) shall, during every period within which provisional tax is or may be payable by him as provided in this Part, or any extension of such period granted in terms of paragraph 11(2), submit to the Commissioner, in such form as the Commissioner may prescribe, an estimate of the total taxable income which will be derived by the taxpayer in respect of the year of assessment in repsect of which provisional tax is or may be payable by him. (b) Every company which is a provisional taxpayer shall, during every period within which provisional tax is or may be payable by it as provided in this Part or any extension of such period granted in terms of paragraph 11(2), submit to the Commissioner, in such form as the Commissioner may prescribe, estimates of the total taxable income which will be derived by the company in respect of its financial year. (c) The amount of any estimate so submitted by a provisional taxpayer (other than a company) during the period referred to in paragraph 7(1)(a) or 8(1) any extension of such period granted in terms of paragraph 11(2), or by a company (as a provisional taxpayer) during the period referred to in para-graph 9(a)(i) or any extension of such period granted in terms of para-graph 11(2), shall, unless the Commissioner, having regard to the circum-stances of the case, agrees to accept an estimate of a lower amount, not be less than the basic amount applicable to the estimate in question, as contem-plated in item (d). (d) The basic amount applicable to any estimate submitted by provisional taxpayer under this paragraph shall, for the purposes of this paragraph and paragraph 5, be deemed to be in respect of: (i) an estimate submitted by a provisional taxpayer (other than a com-pany) under item (a), the taxable income of the taxpayer, as assessed by the Commissioner, for the latest preceding year of assessment in relation to such estimate; or

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(ii) as respects an estimate submitted by a company under item (b), the taxable income of the Company as assessed by the Commissioner, for the latest preceding year of assessment in relation to such an estimate. (e) For the purposes of item (d), the latest preceding year of assessment in relation to any estimate under this paragraph shall be deemed to be the latest of the years of assessment — (i) preceding the year of assessment in respect of which the estimate is made; and (ii) in respect of which a notice of assessment relevant to the estimate has been issued by the Commissioner not less than twenty-one days before the date on which the estimate has been submitted to the Commissioner. (2) If any provisional taxpayer fails to submit any estimate as required by sub-paragraph (1), the Commissioner may estimate the taxable income which is required to be estimated, and such estimate shall be final and conclusive. (3) The Commissioner may call upon any provisional taxpayer to jusify any estimate made by him in terms of sub- paragraph (1), or to furnish particulars of his income and expenditure or any other particulars that may be required and, if the Commissioner is dissatisfied with the said estimate he may increase the amount thereof to such an amount as he considers reasonable, and the estimate as increased shall be final and conclusive. (4) Any estimate made by the Commissioner under sub-paragraph (2) or (3) shall be deemed to take effect in respect of the relevant period within which the provisional taxpayer is required to make any payment of provisional tax in terms of this Part, or within any extension of such period granted in terms of paragraph 11(2).

Additional tax in the event of taxable income being under-estimated.

5. (1) If the final or last estimate of his taxable income made in terms of para-graph 4(1)(a) or (b) by a provisional taxpayer in respect of any year of assessment discloses an estimated amount of taxable income which is less than ninety percent of the amount of the actual taxable income in respect of which the estimate was made, as finally determined for that year under this Order, and which is also less than the basic amount applicable to the estimate in question, as contemplated in paragraph 4(1)(d), the taxpayer shall, subject to sub-paragraphs (2), (3) and (4) be required to pay to the Commissioner, in addition to the normal tax chargeable in respect of his taxable income for such year of assessment, an amount by way of additional tax equal to twenty percent of the difference between the amount of normal tax as calculated in respect of the amount of taxable income as so disclosed and the lesser of the following amounts, namely — (a) the amount of normal tax calculated, at the rates applicable in respect of the said year of assessment, in respect of a taxable income equal to ninety percent of the said actual taxable income; and (b) the amount of normal tax calculated in respect of a taxable income equal to the said basic amount, at the rates applicable in respect of that year. (2) Where the Commissioner is satisfied that the amount of any estimate referred to in sub-paragraph (1) was not deliberately or negligently understated and was calculated with due regard to the factors having a bearing thereon, the Commissioner may in his discretion remit the additional tax or part thereof. (3) Sub-paragraph (1) of this paragraph shall not apply in relation to any final or last estimate referred to in that sub- paragraph if the Commissioner has under the provisions of paragraph 4(3), increased such final or last estimate. (4) Any decision of the Commissioner in the exercise of his discretion under sub-paragraph (2) shall be subject to objection and appeal.

Additional tax in the event of failure to submit an estimate of taxable income timeously.

6. (1) Subject to sub-paragraphs (2) and (3), where any provisional taxpayer is liable for the payment of normal tax in respect of any amount of taxable income derived by him during any year of assessment and he has not on or before the last day of that year or, if the period for the final or last payment of provisional tax by him in respect of such taxable income has under paragraph 11(2), been extended to a date later than the end of such year, on or before such date, submitted to the Commissioner an estimate of such taxable income as required by paragraph 4(1), the taxpayer shall, unless the Commissioner has estimated the said taxable income under paragraph 4(2), be required to pay to the Commissioner, in addition to the normal tax chargeable in respect of such taxable income, an amount by way of additional tax equal to twenty

346 percent of the amount by which the normal tax payable by him in respect of such taxable income exceeds the sum of any amounts of provisional tax paid by him in respect of such taxable income within any period allowed for the payment of such provisional tax under this part or within any extension of such period under paragraph 11(2) and any amounts of employees tax deducted or withheld from his remuneration by his employer during such year. (Amended A.7/1992.) (2) The Commissioner may, if he is satisfied that the provisional taxpayer’s failure to submit such an estimate timeously was not due to an intent to evade or postpone the payment of provisional tax or normal tax, waive or remit the whole or any part of the additional tax imposed under sub-paragraph (1). (3) Any decision of the Commissioner in the exercise of his discretion under sub-paragraph (2) shall be subject to objection and appeal.

Payments of provisional tax by provisional taxpayers (other than companies), whose income is not normally derived wholly or mainly form farming.

7. (1) Subject to sub-paragraph (2), provisional tax shall be paid by every provisional taxpayer (other than a company) in the following manner, namely — (a) within the period of six months, reckoned from the commencement of the year of assessment in question, one half of an amount equal to the total estimated liability of such taxpayer (as determined in accordance with paragraph 2) for normal tax in respect of that year, less the total amount of any employee’s tax deducted by the taxpayer’s employer from the taxpayer’s remuneration during such period; and (b) not later than the last day of the year of assessment in question, an amount equal to the total estimated liability of such taxpayer (as finally determined in accordance with paragraph (2) for normal tax in respect of that year, less the sum of any employee’s tax deducted by the taxpayer’s employer from the taxpayer’s remuneration during such year and the amount paid in terms of item (a). (2) If the Commissioner has in terms of the proviso to section 33(13) of this Order agreed to accept accounts from any provisional taxpayer in respect of any year of assessment drawn to a date falling to a date before or after the end of such year, the period referred to in item (a) of sub-paragraph (1) shall, notwithstanding that sub-paragraph, be reckoned from such date as the Commissioner upon application of the taxpayer and having regard to the circumstances of the case may approve, and in such case the last day of such year of assessment shall for the purposes of item (b) of that sub-paragraph be deemed to be the day preceding the first anniversary of the said date. (3) This paragraph shall not apply in the case of any provisional taxpayer in respect of whom the Commissioner has under item (a) of paragraph 12 directed that paragraph 8 shall apply.

Payment of provisional tax by provisional taxpayers (other than companies) whose income is normally derived wholly or mainly from farming.

8. (1) Every provisional taxpayer (other than a company) whose income is normally derived wholly or mainly from farming and in respect of whom the Commissioner has directed that this paragraph shall apply, shall not later than the last day of the year of assessment in question, pay by way of provisional tax an amount equal to the total estimated liability of such taxpayer (determined under paragraph 2) for normal tax in respect of that year, less the sum of the amounts of any employee’s tax deducted by the taxpayer’s employer from the taxpayer’s remuneration during that year. (2) If the Commissioner has in terms of the proviso to section 33(13) of this Order agreed to accept from any provisional taxpayer referred to in sub-paragraph (1) in respect of any year of assessment drawn to a date falling before or after the end of such year, the Commissioner may upon the application of the taxpayer direct that the last day of such year of assessment shall for the purposes of sub-paragraph (1) be deemed to be such day of the Commissioner having regard to the circumstances of the case fixes.

Provisional tax payments by companies.

9. Provisional tax shall be paid by every company which is a provisional taxpayer in respect of the liability of the company for normal tax on taxable income in the following manner —

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(i) within six months of the commencement of the financial year in question, one half of an amount equal to the total estimated liability of such company (as determined under paragraph 2) for normal tax in respect of that year on taxable income so derived; and (ii) not later than the last day of the financial year in question, an amount equal to the total estimated liability of such company (as determined under paragraph 2) for normal tax in respect of that year on taxable income so derived, less the amount paid in terms of sub-paragraph (i) of this paragraph. (iii) Within the period ending six months after the last day of that year, an amount equal to the total estimated liability of such company (as finally so deter-mined) for normal tax in respect of that year less the sum of the amounts paid under subparagraphs (i) and (ii). (Added A.6/1994.)

Phasing-in of provisional payments.

9A. (1) Notwithstanding paragraphs 7 and 9, the provisional tax by provisional taxpayers (other than farmers) payable — (i) during the year ended thirtieth June 1986, shall be at the rate of one-tenth of the estimated liability as calculated under paragraph 2 for the first payment due under paragraphs 7(1)(a) and 9(i) at the rate of one- tenth of the estimated liability as calculated aforesaid for the second payment due under paragraphs 7(1)(b) and 9(ii); and (ii) during the year ended thirtieth June 1987, shall be at the rate of one fifth of the estimated liability, as calculated under paragraph 2 for the first payment due under paragraphs 7(1)(a) and 9(i) and at the rate of one-fifth of the estimated liability, as calculated aforesaid for the second payment due under paragraphs 7(1)(b) and 9(ii); and (iii) during the year ended thirtieth June 1988, shall be at the rate of three-tenths of the estimated liability, as calculated under paragraph 2 for the first payment due under paragraphs 7(1)(a) and 9(i), and at the rate of three-tenths of the estimated liability, as calculated aforesaid for the second payment due under paragraphs 7(1)(b) and 9(ii); and (iv) during the year ended thirtieth June 1989, shall be at the rate of two-fifths of the estimated liability, as calculated under paragraph 2 for the first payment due under paragraphs 7(1)(a) and 9(i), and at the rate of two-fifths of the estimated liability, as calculated aforesaid for the second payment due under paragraphs 7(1)(b) and 9(ii). (Amended A.6/1987.) (2) Notwithstanding paragraph 8, the payment of provisional tax by provisional taxpayers (other than companies) whose income is normally derived wholly or mainly from farming operations, payable — (i) during the year ended thirtieth June 1986 shall be at the rate of one-fifth of the estimated liability of the taxable income, as calculated under paragraph 4, for the payment due under paragraph 8(1); and (ii) during the year ended thirtieth June 1987, shall be at the rate of two-fifths of the estimated liability of the taxable income, as calculated under paragraph 4, for the payment due under paragraph 8(1); and (iii) during the year ended thirtieth June 1988, shall be at the rate of three-fifths of the estimated liability of the taxable income, as calculated under paragraph 4, for the payment due under paragraph 8(1); and (iv) during the year ended thirtieth June 1989, shall be at the rate of four-fifths of the estimated liability of the taxable income, as calculated under paragraph 4, for the payment due under paragraph 8(1).

Commissioner’s discretion.

10. The Commissioner may absolve any provisional taxpayer form making payment of any amount of provisional tax payable in terms of paragraph 7(1)(a) or paragraph 8 or 9(i), if he is satisfied that the taxable income which may be derived by a taxpayer for the year of assessment in question cannot be estimated on the facts available at the time when payment of the amount in question has to be made.

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Extension of time for payment of provisional tax.

11. (1) If after the end of any period within which provisional tax is payable in terms of this Schedule, the Commissioner has under paragraph 4(3) increased the amount of any estimate of taxable income submitted by any provisional taxpayer during such period, any additional provisional tax payable as a result of the Commissioner having made such increase shall, notwithstanding paragraphs 7, 8 and 9 be payable within such period as the Commissioner may determine. (2) The Commissioner may, having regard to the circumstances of the case, extend the period within which any amount of provisional tax is to be paid, or may agree to accept payment of any such amount in equal or varying amounts.

Certain matters to be decided by the Commissioner.

12. The Commissioner’s decision or direction in regard to the following matters shall be final and conclusive, namely — (a) the question whether any provisional taxpayer (other than a company) should from time to time pay provisional tax in the manner provided in paragraphs 7 or 8; (b) the question as to what amount of provisional tax should for the purposes of paragraph 7 or 8 be payable by any spouse whose return is separately assessed in terms of section 36(2) of this Order.

Penalty on late payments of provisional tax.

13. (1) If any provisional taxpayer fails to pay any amount of provisional tax for which he is liable within the period allowed for payment thereof in terms of paragraphs 7, 8, 9, or 11(1)or within such extended time the Commissioner may allow in terms of paragraph 11(2) he shall, in addition to any other penalty or charge incurred by him under this Order, pay to the Commissioner a penalty equal to twenty per cent of the amount not paid. (Amended A.7/1992.) (2) The Commissioner may, if he is satisfied that the provisional taxpayer’s failure to pay the amount of provisional tax was not due to an intent to evade or postpone payment of the tax, or otherwise evade or postpone payment of the tax, or otherwise evade his obligations under this Order, waive or remit the whole or any part of the penalty imposed under sub- paragraph (1).

Set off of provisional tax against tax liability of persons.

14. (1) There shall be set off against the liability of the taxpayer in respect of any normal tax due under this Order by the taxpayer, during any year of assessment, the amounts of provisional tax paid by the taxpayer, and, (a) if, in the case of any provisional taxpayer, the said amount of provisional tax exceeds the total liability for the said taxes, the Commissioner shall not be required to make any refund of the excess amount (or any portion thereof) standing to the taxpayer’s credit, unless the Commissioner is satisfied, having regard to the circumstances of the case, that a refund of such excess amount (or a portion thereof) is warranted, and any amount (after the deduction of such excess amount refunded to the taxpayer) standing to the taxpayer’s credit shall be set off against the taxpayer’s liability for normal tax for which he is subsequently assessed by the Commissioner or may be set off in whole or in part against any amount of provisional tax which the taxpayer is required to pay under this Schedule; and (b) if, in the case of any taxpayer, the taxpayer’s total liability for the aforesaid taxes exceed the sum of the said amounts of provisional tax, the amount of the excess shall be payable by the taxpayer to the Commissioner. (2) Sub-paragraph (1) shall not be construed as requiring any amount of provisional tax paid in respect of any year of assessment to be set off against any liability of the taxpayer before the taxpayer’s liability for normal tax in respect of that year is determined by the Commissioner or, where such last mentioned liability has not been determined by the Commissioner, before the expiration of the period determined by the Commissioner. (3) If the Commissioner, purporting to act under this paragraph, pays to any person by way of refund any amount which was not properly payable to that person under those provisions or which was in excess of the amount due to such person by way of refund under those provisions, such amount or the excess, as the case may be, shall forthwith be repaid by the person concerned to the Commissioner and shall be recoverable by the Commissioner under this Order as if it were a tax.

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Refund procedure compliance.

15. No refund of provisional tax shall be made to the taxpayer concerned otherwise than as provided for in paragraph 14.

Offences.

16. Any person who fails to submit to the Commissioner any estimate of his taxable income as required under paragraph 4 shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand Emalangeni or to imprisonment for a period not exceeding twelve months, or both. (Amended A.7/1992.)

Recovery of provisional tax.

17. Any amount of provisional tax, penalty or additional tax payable in terms of this Schedule, and any amount of interest payable in terms of section 58A of this Order shall, when it becomes due or is payable, be a debt due to the Government and may be recovered by the Commissioner in the manner prescribed in section 61 of this Order.

THE INCOME TAX (CLEARANCE CERTIFICATES) REGULATIONS, 1985 (Under Section 69) In exercise of the powers conferred by section 69 of the Income Tax Order, 1975 the Minister for Finance hereby makes the following Regulations:

Citation.

1. These Regulations may be cited as the Income Tax (Clearance Certificates) Regulations, 1988, and shall come into force on the 1st July, 1988.

Transactions for which and persons from whom tax clearance certificates are required.

2. The transactions requiring income tax clearance certificates and the persons from whom income tax clearance certificates shall be required shall be set out in the schedule hereto.

Revocation of Legal Notice No. 141 of 1985.

3. The Income Tax (Clearance Certificates) Regulations, 1985, are hereby revoked.

SCHEDULE

TRANSACTIONS REQUIRING INCOME TAX CLEARANCE CERTIFICATES AND PERSONS FROM WHOM INCOME TAX CLEARANCE CERTIFICATES REQUIRED

Type of transactions Persons from whom Income Tax are required.

(1) The issue, renewal, or transfer of any License (other than Persons seeking issue, renewal or transfer of any License, renewal of motor vehicle License), permit or similar document permit or similar document. relating to any trade, business, profession or vocation.

(2) The transfer of immovable property or any endorsement to any The transferor, or any person in whose name the endorsement is title deed having the effect of transferring immovable property. to be made.

(3) The registration or deregistration of companies. In the case of registration the persons whose names are to be registered as directors or subscribers; in the case of deregistration by the company to be deregistered.

(4) The registration of motor vehicles in Swaziland. Persons in whose name the motor vehicle is to be registered.

Type of transactions Persons from whom Income Tax are required.

(5) The tendering for the provision of goods and services to the Persons tendering for provision of goods or services to Government and parastatal body, in excess of E5,000. government or parastatal body.

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THE TRADING LICENSES ORDER Commentary

According to the trading licenses order any person desirous of conducting any business in Swaziland has to lodge a written application to the Trading License Officer in the region in which the business is to be carried out.

The Application has to contain the following information:- a) The full name and postal address of the applicant; b) The nationality of the applicant and if the applicant is a company of partnership, the nationality of the shareholders or partners, as the case may me; c) The amount of money the applicant intends to invest in the proposed business; d) Full particulars of any financial interest (whether as a partner, shareholder as a result of a loan, guarantee or other financial transaction) which any other person has in the applicant’s proposed business; e) The nature of the License applied for; f) Full particulars of the proposed business site; g) Full particulars of transferor in the case of an applicant for transfer; h) Full particulars of the amendment, in the case of an application for amendment.

According to the Act an application cannot be granted, amended or transferred if the business is to be carried on in premises situate on Swazi Nation land without the written consent of the Ngwenyama or any person authorised in writing by the Ngwenyama to grant such consent.

Also, the licensing officer may grant or refuse an application for the grant, amendment or transfer of a License and he shall give reasons for his decision in writing.

According to the Act a license has to specify the premised where the licensee is to conduct his business and every License shall expire on the 31st December of the year for which is was granted. The licensee may renew his License on completion of a prescribed form and paying the licensing officer the annual License fee. All licenses should be displayed in a prominent position on the premises in respect of which it was issued.

A License may be amended by substituting one kind of business for another or for substitution of premises, or by adding another kind of business.

A License may not be transferred to another person except:- a) In the case of death, to the surviving spouse, executor or heir; b) insolvency to the appointed trustee; c) Corporation/ Company, to the liquidator; d) Legal disability, to an administrator; e) Sale of business, to the purchaser.

A licensing officer may at any time, on good cause shown, after notice in writing to the licensee revoke or suspend any License granted. A person aggrieved by the decision of a licensing officer may within 14 days from the date of the decision appeal to the Minister by delivering a notice of appeal to the licensing officer.

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The Act allows the Minister to confirm, revise or alter the decision of the licensing officer, or remit the record to the licensing officer for further evidence. The decision of the Minister on appeal shall be final.

The Act lists offences that may result from contravention of the Act, for example it is an offence to commence or continue any trade, profession or occupation unless one obtained a License in that regard. Anyone who contravenes the above shall be liable on conviction to a fine of 10% of the prescribed fee, for each month or part thereof during which he carried on the trade, occupation of profession.

The Trading Licenses Order 20 of 1975

Date of commencement: 1st January, 1976.

Date of Assent: 29th May, 1975.

A King’s Order-in-Council to repeal the Trading Licenses Act No. 27 of 1939, as amended and to make new provisions for the grant of trading Licenses and matters incidental thereto.

Short title.

1. This King’s Order-in-Council may be cited as the Trading Licenses Order, 1975.

Interpretation.

2. (1) In this Order, except where the context otherwise requires —

“business” means a concern carrying on the occupation of — (a) a regulated trade; (b) importing or exporting goods; (c) commission agent; (d) manufacturers representative; (e) produce dealer or produce broker; (f) business broker or management consultant; (g) estate agent; or (h) subject to any other law, any other occupation, whether or not similar to any of the foregoing, which the Minister may, by notice in the Gazette, declare to be a business for the purposes of this Order;

“business transaction” means a transaction in respect of or in connection with the occupation carried on by the concern which constitutes the business;

“commission agent” means a person employed by his principal to sell goods on a commission basis;

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“court” means a magistrate’s court established under the Magistrate’s Court Act No. 66 of 1938, but does not exclude the functions of the High Court;

“general business area” means an area declared under section 3 to be a general business area for the purposes of this Order;

“License” means a License granted under this Order;

“licensee” means holder of a License;

“licensing officer” means a person designated to be a licensing officer under section 6;

“manufacturer’s representative” means a person resident in Swaziland in the year in question who acts as agent for a manufacturing or trading concern on a retainer basis or on the basis of the orders which he obtains in Swaziland, or both;

“Minister” means the Minister for Commerce;

“regulated trade” means — (a) wholesale or retail trade in any movables or goods of any kind whatsoever; (b) catering; (c) laundering or dry-cleaning; (d) hairdressing; (e) beauty culture; (f) shoe repairing; (g) motor vehicle repairing; (h) cinematograph film exhibition; or (i) advertising;

“specified goods” means any goods or goods of any particular class, declared under section 4 to be specified goods for the purposes of this Order. (2) For the purposes of this Order a person conducts business if he is — (i) the owner or a part owner of the business; or (ii) the person controlling or a person partly controlling the business.

Declaration of general business area.

3. After consultation with the Minister for Interior, and the approval of the Council of Ministers, the Minister may by notice in the Gazette — (a) declare any area to be a general business area for the purposes of this Order; or (b) revoke any declaration made by him under this section.

Declaration of specified goods.

4. The Minister may by notice in the Gazette — (a) declare any particular goods or goods of any particular class to be specified goods for the purposes of this Order; or (b) revoke any declaration made by him under this section.

Restriction of trade.

5. (1) After a day to be determined by the Minister by notice in the Gazette, no person may conduct any business — (a) except under and in accordance with the terms of a License or a License issued under and still valid under the law hereby repealed; or

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(b) in any place which is not situate within a general business area without the written authority of the Minister: Provided that this paragraph shall not apply to a License granted under the Act hereby repealed or since the coming into force of this Order; (Amended K.O-I-C. 31/1976.) (c) in any specified goods unless his License authorises him to do so.

(NOTE: The Minister by Legal Notice 8 of 1976 has appointed the 2nd February, 1976 as the day determined under section 5(1).) (2) Any person who contravenes this section shall be guilty of an offence and liable on conviction to a fine of E500 or imprisonment for one year or both. (3) Upon the conviction of a person of an offence under this section the court may revoke the License, if such person is a licensee; or, if such a person is not a licensee, direct in writing that no License may be granted to him during such period as the court may specify. (4) If in a prosecution for an offence under this section it is alleged that a person does not hold a current License, it shall be presumed that such person does not hold a current License until the contrary is proved.

Designation of licensing officers.

6. (1) The Minister shall designate a public officer to be a licensing officer and shall also designate a public officer to be a deputy licensing officer in each district. (2) A deputy licensing officer shall carry out the functions of a licensing officer if for any cause the latter is unable to do so.

Application for the grant, amendment or transfers of Licenses.

7. (1) Any person desiring to make an application for the grant, amendment or transfer of any License shall do so in writing to the licensing officer for the district in which he desires to carry on such business. (2) Every application for the grant, amendment or transfer of a License shall contain the following information: — (a) the full name and postal address of the applicant; (b) the nationality of the applicant and if the applicant is a company or a partnership the nationality of the shareholders or partners, as the case may be; (c) the amount of money the applicant intends to invest in the proposed business; (d) full particulars of any financial interest (whether as a partner, shareholder as a result of any loan, guarantee or other financial transaction) which any other person has in the applicant’s proposed business; (e) the nature of the License applied for; (f) full particulars of the proposed business site; (g) full particulars of the transferor, in the case of an application for a transfer; (h) full particulars of the amendment, in the case of an application for an amendment. (3) Notice of such application, the time, date and place of hearing thereof shall be published by the licensing officer once in the Gazette and in a newspaper circulating in Swaziland at least 21 days prior to the date of the hearing of such application. (4) An applicant for the grant, amendment or transfer of a License shall pay such application fees as the Minister may prescribe from time to time. (5) Any person desiring to oppose an application under this Order shall give notice thereof together with reasons for such objection to the licensing officer and the applicant in writing not later than 5 days prior to the hearing of such application. (6) All applications under this Order shall be heard in public and the licensing officer, applicant or objector, as the case may be, may subpoena witnesses to give evidence or to produce books or documents at any such hearing, and such subpoena shall be issued under the hand of the Clerk of the Court.

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(7) Any witness who has been subpoenaed shall be paid fees at the same rate as is paid to Crown witnesses subpoenaed to give evidence at a criminal trial in a magistrate’s court. (8) Any witness who has been subpoenaed or called by the licensing officer shall be paid his witness fees by the Government, but any other witness subpoenaed by the applicant or objector, as the case may be, shall be paid by the party requiring his attendance.

Functions of licensing officers.

8. (1) A licensing officer may grant or refuse an application for the grant, amendment or transfer of a License to conduct a business in a general business area: Provided that no such application shall be granted, amended, or transferred if the business is to be carried on in premises situate on Swazi nation land without the written consent thereto of the Ngwenyama or of any person authorised in writing by the Ngwenyama, either generally or specifically, to grant such consent. (2) A licensing officer may grant an application for the grant, amendment or transfer of a License subject to such conditions as he may deem just. (3) A licensing officer shall give reasons for his decision in writing, if requested to do so by an applicant or objector, as the case may be.

Power of revocation or suspension.

8bis. (1) A licensing officer may at any time on good cause after due notice in writing to the licensee concerned revoke or suspend for such period as the licensing officer may deem fit, any License granted, amended or transferred under section 7 or issued under the Act hereby repealed: Provided that a License, entitling the holder thereof to carry on any business on Swazi nation land, shall not be revoked or suspended unless the Ngwenyama or a person authorised by him in writing in that behalf has given his written consent to such revocation or suspension. (2) The notice referred to subsection (1) shall call upon the licensee concerned to show cause by making any oral or written representation to the licensing officer within a reasonable period to be stated in such notice why the License referred to shall not be revoked or suspended, as the case may be. (3) Any person who carries on the business in respect of which the License has been revoked after such revocation or, if the License has been suspended during the period of such suspension, shall be guilty of an offence and liable on conviction to imprisonment for two years or a fine of 500 emalangeni. (4) Sections 9 and 10 shall mutatis mutandis apply to a revocation or suspension of a License in terms of this section.

(Added K.O-I-C. 31/1976.)

Appeals against decisions of licensing officers.

9. (1) Any person aggrieved by the decision of a licensing officer may within 14 days from the date of such decision appeal in writing to the Minister by delivering a notice of appeal to the licensing officer. (2) The notice of appeal shall concisely set out the grounds of appeal and shall be accompanied by an appeal fee to be prescribed by the Minister from time to time. (3) A copy of the notice of appeal shall be served on the applicant or objector or representative of the applicant or objector or both as the case may be. (4) The licensing officer shall within 7 days of the lodging with him of the notice of such appeal, forward the full record of the proceedings to the Minister.

Powers of the Minister on appeal.

10. (1) The Minister may — (a) confirm, revise or alter the decision of a licensing officer; 355

(b) remit the record to the licensing officer for the taking of such further evidence as he may direct; (c) cause the parties or any other person under subpoena to give evidence or produce such books, documents etc. as he may order. (2) The decision of the Minister on appeal shall be final.

Licenses.

11. (1) A License shall specify the premises where the licensee has to conduct his business, and, if a business is conducted at more than one premises, a separate License shall be required for each of such premises: Provided that if a business is conducted by one management in premises divided by walls but otherwise communicating internally with one another only one License shall be required for such premises. (2) Every License shall expire on the 31st day of December of the year for which it was granted or subsequently renewed, as the case may be. (3) A licensee may renew his License on completion of a prescribed form and paying the licensing officer the annual License fee prescribed for such License: Provided that the licensing officer may refuse to issue a renewal of such License if the form is not satisfactorily completed by or on behalf of such licensee. (Amended K.O-I-C. 31/1976.) (4) Any Licenses granted under the law repealed by this Order shall be deemed to have been granted under this Order.

Amendment of Licenses.

12. (1) A licensing officer may on application in the manner prescribed in this Order amend a License by substituting another kind of business for the kind of business specified in the License, or other premises for the premises specified in the License or by adding another kind of business. (2) There shall be payable upon an amendment of a License under this section the appropriate fee prescribed in respect of each business authorised by the License as amended. (3) An amended License shall be valid until the 31st December in the year in which it was amended or subsequently renewed, as the case may be.

Transfer of Licenses.

13. (1) Save as provided in this section, no License shall be transferred to any person. (2) A licensee who lends, transfers, or attempts to lend or transfer his License to any other person and any person who borrows or makes use of a License granted to another and not lawfully transferred to him as provided under this section shall be guilty of an offence. (3) Notwithstanding subsections (1) and (2) hereof, a licensing officer may on application in the manner prescribed in this Order transfer a License to any of the following persons: — (a) in the case of the death of the licensee, to the surviving spouse, the executor of the estate or an heir, as the case may be, of such licensee; (b) in the case of the insolvency of the licensee to the lawfully appointed trustee; (c) in the case of a corporation or a company in liquidation, to the lawfully appointed liquidator; (d) in any case where the licensee becomes subject to a legal disability, to any person lawfully appointed to administer his affairs; (e) in the case of a sale of business to the purchaser. (4) Any License so transferred shall be valid until the 31st day of December of the year in which it was transferred or subsequently renewed, as the case may be.

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Exhibition of Licenses.

14. (1) Every License or the duplicate thereof issued in terms of subsection (2) shall, except when lodged with a licensing officer for any purpose under this Order, be displayed in a prominent position on the premises in respect of which it was issued. (2) A licensee who fails or neglects to display the License or duplicate thereof as mentioned in subsection (1) shall be guilty of an offence. (3) If upon application in the prescribed manner, a licensing officer is satisfied that a License has been lost, destroyed or defaced such licensing officer shall, upon payment of a fee of 50 cents, issue a duplicate of such License to the licensee.

Right to enter premises.

15. (1) Any licensing officer, police officer of or above the rank of sub-inspector or an administrative officer, authorised in writing to do so, may at any reasonable time — (a) enter any premises in which he has reasonable grounds for believing that business is being conducted and inspect such premises, any book, document or any other thing found therein for the purpose of ascertaining whether or not this Order is being complied with; and (b) require any person appearing to be conducting the business therein to give such information as the officer may reasonably require to enable him to ascertain whether or not this Order is being complied with. (2) Any person who hinders or obstructs an officer acting under this section shall be guilty of an offence.

Ownership of licensed business.

16. (1) No person shall own the whole or the major portion of any business which is being conducted under a License granted to another person under this Order, whether by way of ownership of the goods of such business or by sharing in the profits of such business or in any other manner, without the written consent of the licensing officer who has granted such License. (2) Any person contravening subsection (1) shall be guilty of an offence.

Offences.

17. (1) A licensee shall be liable for any offence committed by his partner, agent or servant under this Order unless he can prove he had bona fide reasonable grounds for believing that the provisions of this Order were being complied with and that he had taken all reasonable steps to prevent the commission of such offence. (2) On a charge against a licensee for an offence committed by his partner, agent or servant under this Order, such partner, agent or servant may be jointly charged with the licensee. (3) Any person who makes a false statement, or a statement which he has reason to believe is not true, in an application under this Order or to an officer acting under this Order shall be guilty of an offence.

Penalties.

18. Any person who is guilty of an offence under this Order for which no penalty is specifically provided shall be liable on conviction to imprisonment for a period of twelve months or E300 or both.

Non-applicability of this Order.

19. Sections 5 and 12 shall not apply in respect of any License which has been granted under the Act repealed by section 21, and this Order shall not apply to any License granted under any other law.

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Regulations.

20. The Minister may make regulations for the carrying out of this Order and without prejudice to the generality of the foregoing, prescribing the forms to be used, any fee payable under this Order, including any License fees (annual or otherwise) to be paid by the licensee.

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THE CUSTOMS AND EXCISE ACT Commentary

This is a lengthy and broad Act that deals with the levying of customs, excise and sales duties and the prohibition and control of the import, export or manufacture of certain goods other matters incidental thereto. The first part of the Act is the interpretation clause and the second file deals with the General duties and powers of the commissioner of customs and excise and officers.

Part III deals with import, export and transit of goods. According to section 3 the commissioner has a duty to administer this Act and according to section 4 the officers have a duty to act under the control and direction of the commissioner. The duties of the officers are the following: any officer may, without previous notice at any time enter any premises whatsoever and make such examination and enquiry as he deems necessary , while he is on the premises he may require any person to produce any book , document or thing which relates to matters dealt with in this Act, he may also examine and make extracts from and copies of any such book or document.

An officer has a right to stop and board any vehicle and search it or any person thereon or search for goods upon which duty has not been paid, or in respect of which he has reasonable believe that there has been a contravention of this Act.

The controller of customs may also board any aircraft arriving at any airport in Swaziland and stay on board unhindered for as long as he deems necessary for the proper performance of his duties. He has free access to and the right to rummage in every part of such aircraft, to examine all goods on board and to mark any goods. No goods imported into Swaziland shall without the permission of the controller be landed, removed or otherwise dealt with without the permission of the controller.

According to section13 of the Act any person entering or leaving Swaziland has to unreservedly declare all goods in his possession which he brought with him into Swaziland or proposes taking with him out of Swaziland. He then has to pay the duties if any, duly assessed by an officer to the controller.

In cases where a person is detected or is suspected by the controller of an attempt to import, export, land or remove goods illegally or to evade the payment of duty on any goods, the controller may take the person concerned before a magistrate’s court to be dealt with or he may detain such person in a police station or other suitable place until he can be taken to the magistrates court.

Section 14 states that the controller may, in the absence of the importer or exporter of any package open and examine such package at the importer or exporter’s risk and expense. However, where possible the controller has to first try and ascertain the importer or exporter’s whereabouts and afford him the opportunity of appearing before the importer and opening the package himself.

If any goods have been taken to the government warehouse the commissioner may require rent to be paid for the goods as they remain there. And he may refuse delivery of them unless he has received satisfactory proof that the person claiming the goods is lawfully entitled to them, that all relevant provisions of this Act relating to import, export

359 or transit of goods has been complied with, and that freight and other charges including landing charges and rent due in respect of such goods have been paid.

Part V of the Act is about clearance and origin of goods and liability for payment of duties. It states that every importer of goods has to within seven (7) days of the date on which the goods were imported, make due entry of those goods and declare to the truth of such entry. The following goods however need not be declared: - containers temporarily imported - human remains - goods that are of no commercial value - goods imported under international carnet, and - goods of a value for duty purposes not exceeding an amount of E1000.00 and on which no duty is payable.

If entry of imported goods has not been made on expiry of the period prescribed, they are then removed to a government warehouse where after the expiry of a period of three (3) months they may be sold and the proceeds applied in discharge of any duty, expenses incurred by the department, charges due to the department and the surplus , if any, shall be paid to the owner of the goods.

Section 44 of the Act stipulates that all goods consigned to or imported or stored or manufactured in a customs and excise warehouse or removed in bond, shall upon being entered for home consumption be liable to such duties as may at the time of such entry be leviable upon such goods.

Part X of the Act deals with rebates, refunds and drawbacks of duty and elaborates on the instances in which any goods may be admitted under rebate or where any duty may be refunded. Part XI then lists offences in contravention of the Act and the penalties attaching thereto.

The Act is then accompanied by the Customs Union Agreement between the governments of Swaziland, Botswana , Lesotho and the Republic of South Africa, The Customs and Excise Regulations and lastly, there are a number of Schedules which must be read together with certain parts of the Act.

The Customs and Excise Act, 1971

Date of commencement (subject to section 1(2)) 1st March, 1969.

Date of Assent: 3rd November, 1971.

Arrangement of Sections

PART I PRELIMINARY 1. Short title and commencement. 2. Interpretation.

PART II

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ADMINISTRATION, GENERAL DUTIES AND POWERS OF COMMISSIONER AND OFFICERS, AND APPLICATION OF ACT 3. Commissioner to administer Act. 4. General duties and powers of officers.

PART III IMPORT, EXPORT AND TRANSIT OF GOODS 5. Appointment of places of entry, authorized roads and routes, etc. 6. Report of arrival or departure of aircraft. 7. Boarding and searching of aircraft. 8. Sealing of goods on board aircraft. 9. When goods deemed to be imported. 10. No landing and despatch of goods without permission. 11. Goods imported or exported overland. 12. Goods imported or exported by post. 13. Persons entering or leaving Swaziland and smugglers. 14. Opening of package in absence of importer or exporter. 15. Government warehouse. 16. Removal of goods in bond. 16bis. Exportation of goods from duty warehouse.

PART IV DUTY WAREHOUSE—STORAGE AND MANUFACTURE OF GOODS IN DUTY WAREHOUSE 17. Duty warehouse. 18. Goods in duty warehouse. 19. Special duty warehouse. 20. Sample goods in a duty warehouse. 21. Storage or manufacture of prohibited goods. 22. Aircraft stores consumed in the common customs area. 23. Sorting, packing etc. in duty storage warehouse. 24. Transfer of ownership of warehoused goods. 25. Special provisions in respect of duty manufacturing warehouse. 26. Ascertaining quantity of spirits by weighing. 27. Classification of spirits. 28. Control of the use of spirits for certain purposes. 29. Entry of spirits for use in manufacture. 30. Ascertaining strength of spirits. 31. Requirements in respect of still. 32. Special provisions regarding spirits manufactured by agricultural distiller. 33. Special provisions regarding wine. 34. Special provisions regarding beer. 35. Special provisions in respect of manufacture of sales duty goods or goods specified in Section B of Part 2 of Schedule No. 1 and collection of sales duty or excise duty specified in Section B of Part 2 of Schedule No. 1. 36. Duties applicable to goods manufactured in a duty warehouse.

PART V CLEARANCE AND ORIGIN OF GOODS — LIABILITY FOR AND AND PAYMENT OF DUTIES 361

37. Entry of goods and time of entry. 38. Importer and exporter to produce documents and pay duties. 38bis Sale in transit 39. Validity of entries. 40. Particulars on invoices. 41. Entry by bill of sight. 42. Disposal of goods on failure to make due entry. 43. Liability for duty. 43bis Joint and several liability for duty or certain amounts. 44. Determination of duty applicable. 45. Origin of goods. 46. Payment of duty and rate of duty applicable. 46bis. Prohibition of dealing with goods not entered for home consumption. 47. Application of Schedules and amendments thereto. 47bis. Ordinary levy. 48. Additional duties under customs union agreement. 49. Agreement in respect of rates of duty lower than the general rates. 50. Agreement in respect of rates of duty lower than the most favoured nation rates. 51. Agreement with any territory. 52. Agreement lapses if not approved by the House of Assembly. 53. Discrimination by other countries. 54. Provisions with regard to stamp duties.

PART VI

ANTI-DUMPING DUTIES 55. Anti-dumping duties provided for in Schedule No. 2. 56. Anti-dumping duties not normally applicable to goods entered under Schedule No. 3 or 4. 57. Exclusion of certain goods from payment of anti-dumping duty. 57bis.

PART VII

EFFECT OF AMENDMENT OF DUTIES 58. Time when new or increased duties become payable. 59. Contract price may be varied to extent of alteration in duty.

PART VIII

LICENSING 60. License fees according to Schedule No. 8. 61. Duty warehouse License. 62. Agricultural distiller. 63. Still to be licensed. 64. Special warehouse for the manufacture of wine. 64bis Container depot Licenses.

PART IX

VALUE 362

65. Value for customs duty purposes. 66. Transaction value. 67. Free on board price. 68. Repealed A.19/1978.). 69. Value for excise duty purposes. 70. Value for sales duty purposes. 71. Value of certain specified goods. 72. Value of goods exported. 73. Rates of exchange for conversion of values. 74. Value of goods not liable to ad valorem duty. 74bis.

PART X

REBATES, REFUNDS AND DRAWBACKS OF DUTY 75. Specific rebate, drawback and refunds of duty. 75. General refund in respect of imported or excisable goods. 76bis. Recovery of certain amounts not duly payable. 77. Overpayment in respect of excisable goods and sales duty goods.

PART XI PENAL PROVISIONS 78. Offences not expressly mentioned. 79. Less serious offences and their punishment. 80. Serious offences and their punishment. 81. Non-declaration of goods. 82. (Repealed A.5/1991.) 83. Irregular dealing with or in goods. 84. False document and declaration. 85. Beer of higher or lower density than indicated by label or container. 86. Certain specified offences. 87. Goods irregularly dealt with liable to forfeiture. 88. Seizure. 89. Notice of claim by owner in respect of seized goods. 90. Disposal of seized goods. 91. Admission of guilt. 92. Payment and disposal of fines and penalties. 93. Remission or mitigation of penalties and forfeiture. 94. Recovery of penalties by process of law. 95. Jurisdiction of courts. 96. Notice of action and period of bringing action. 96bis. Approval of container operators.

PART XII GENERAL 97. Pilot may appoint agent. 98. Liability of principal for acts of agent. 99. Liability of agent for obligations of principal.

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100. Agent may be called upon to produce written authority. 101. Business accounts, documents, etc., to be available for inspection. 102. Seller of goods to produce proof of payment of duty. 103. Liability of company, partnership, etc. 104. Deferment of payment of duty. 105. Samples. 106. Expenses of landing, examination, weighing, analysis, etc. 107. Control in respect of manufacture of certain goods or materials and persons who carry out processes in connexion therewith. 108. Embargo on goods. 109. Destruction of goods and detention of vehicles. 110. Instruments and tables. 111. Production of certificate of officer on registration of certain motor vehicles. 112. Wreck. 113. Prohibition and restrictions. 114. Duty constitutes a debt to the Government. 115. Entries, oaths, etc. made outside Swaziland of full force and effect. 116. Manufacture of excisable goods solely for use by the manufacturer thereof. 117. (Repealed Q.5/1991.) 118. Statistics. 119. Transitional provisions applicable when Schedule amended. 120. Regulations and rules. 121. Repeal.

An Act to provide for the levying of customs, excise and sales duties and a surcharge, the prohibition and control of the import, export or manufacture of certain goods and for incidental matters. (Amended A.5/1991.)

PART I

PRELIMINARY

Short title and commencement.

1. (1) This Act may be cited as the Customs and Excise Act, 1971, and, subject to subsection (2) shall, except as may otherwise be provided, be deemed to have come into force on 1st March, 1969. (Amended A.11/1988.) (2) Sections 25(2), (14), (15), (16), 26 to 33 inclusive, 62 to 64 inclusive, and 79(1)(a) and (b) shall only come into force on a date fixed by the Minister by notice in the Gazette.

Interpretation.

2. (1) In this Act unless the context otherwise requires —

“Act” includes a regulation or rule made, or agreement concluded or deemed to have been concluded, under it;

“African beer” shall have the meaning assigned to it by the Liquor Licenses Act, No. 30 of 1964;

“agricultural distiller” means any owner or occupier of a farm who is — (a) licensed to keep a still on such farm; and (b) licensed to distil spirits on such farm from grapes or other prescribed fresh fruit grown by him on such farm;

“airport control area” means such area of an airport as is controlled in accordance with the law relating to airports or this Act;

“beer” shall have the meaning assigned to “malt liquor” by the Liquor Licenses Act, No. 30 of 1964, but shall not include African beer; 364

“Commissioner” means the Commissioner of Customs and Excise appointed under section 3; (Added A.11/1988.)

“common customs area” means the combined area of Swaziland and countries with the governments of which customs union agreements have been concluded under section 51; (Amended A.5/1991.)

“container” except in the definition of “package” means transport equipment — (a) having an internal volume of not less than one cubic meter; and (b) designed for the transport of goods by any means of carriage, without intermediate reloading, and “containerised” has a corresponding meaning;

“container depot” means any container depot contemplated in section 3(1)(k); (Added A.10/1978.)

“container operator” means any person providing international transportation of containerized goods, and approved by the Commissioner under section 96bis, for operating containers in Swaziland; (Added A.10/1978; amended A.11/1988.)

“container terminal” means any container terminal contemplated in section 5(1)(j); (Added A.10/1978.)

“controller”, in relation to any area or any matter, means the officer designated by the Commissioner to be the Controller of Customs, Excise and Sales Duty in respect of that area or matter, and includes an officer acting under the control and direction of any officer so designated by the Commissioner;

“crew” includes every person (except the pilot) employed in any capacity on board any aircraft;

“customs duty” means, subject to the provisions of subsection (2), any duty leviable under Schedule No. 1 (except parts 3 and 4 thereof) or No. 2 on goods imported into Swaziland; (Amended K.O-I-C. 17/1976; A.5/1991.)

“customs tariff” means Schedule No. 1 (except Part 3 thereof) insofar as it relates to imported goods;

“customs union agreement” means the agreement concluded on 11th December, 1969 between the governments of Botswana, Lesotho, Swaziland and the Republic relating to customs, excise and sales duty and any agreement between those governments amending or explaining it;

“department” means the Department of Customs and Excise within the Ministry of Finance; (Amended A.5/1991.)

“depot operator” means any person having charge of any container depot; (Added A.10/1978.)

“duty” means any duty leviable under this Act;

“duty airport” means any airport established as such under section 5 by the Commissioner;

“duty manufacturing warehouse” means a duty warehouse licensed for the manufacture of dutiable goods;

“duty storage warehouse” means a duty warehouse licensed for the storage of dutiable goods;

“duty warehouse” means a licensed warehouse established on a place appointed by the Commissioner under section 5 for the establishment of a warehouse for customs, excise and sales duty purposes;

“entry for home consumption” includes any entry under any item in Schedule No. 3, 4, 6 or 7;

“excisable goods” means any goods specified in Part 2 of Schedule No. 1 which have been manufactured in Swaziland;

“excise duty” means, subject to subsection (2), any duty leviable under Part 2 of Schedule No. 1 on any goods manufactured in Swaziland; (Amended A.5/1991.)

“excise value” means value as defined in section 69;

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“exporter”, in relation to imported goods, includes the manufacturer, supplier or shipper of such goods or any person inside or outside Swaziland representing or acting on behalf of such manufacturer, supplier or shipper;

“fiscal duty” means any duty leviable under Column III of Schedule No. 1 (except Part 3 thereof) or Schedule No. 2 on goods imported into Swaziland; (Added K.O-I-C 17/1976.)

“General Agreement on Tariffs and Trade” means the General Agreement on Tariffs and Trade concluded at Geneva on the 30th October, 1947, and includes any amendment thereof;

“General Agreement on Tariffs and Trade Act” means the Geneva General Agreement of Tariffs and Trade Act, No. 75 of 1948;

“goods” includes all wares, articles, merchandise, animals, currency, matters or things;

“government warehouse” means any premises provided by the Government for the deposit of goods for the security thereof and of the duties due thereon or pending compliance with any law in respect of such goods;

“home consumption” means consumption or use in Swaziland;

“illicit goods”, in relation to imported, excisable or sales duty goods, means any such goods in respect of which any contravention under this Act has been committed, and includes any preparation or other product made wholly or in part from spirits or other materials which were illicit goods;

“importer” includes any person who, at the time of importation — (a) owns any goods imported; (b) carries the risk of any goods imported; (c) represents that or acts as if he is the importer or owner of any goods imported; (d) actually brings any goods into Swaziland; (e) is beneficially interested in any way whatever in any goods imported; or (f) acts on behalf of any person referred to in paragraph (a), (b), (c), (d) or (e);

“L.C.L. container” means any container containing goods consigned from one or more exporters to more than one importer; (Added A.10/1978.)

“land” includes off-loading from any vehicle;

“locally” means in any part of the common customs area;

“magistrates’ court” means a court established under the Magistrate’s Courts Act No. 66 of 1938;

“manufacture”, when used as a noun, includes, as the Commissioner may determine, any process — (a) in the manufacture or assembly of any excisable goods or sales duty goods; (b) in the conversion of any goods into excisable goods or sales duty goods; (c) whereby the dutiable quantity or value of any imported goods specified in section B of Part 2 of Schedule No. 1, excisable goods or sales duty goods is increased in any manner; (d) in the recovery of excisable goods or sales duty goods from excisable goods or any other goods; or (e) in the packing or measuring-off of any imported goods specified in section B of Part 2 of Schedule No. 1, excisable goods or sales duty goods, and, when used as a verb, has a corresponding meaning, and “manufacturer” has a corresponding meaning; (Amended A.7/1981; A.5/1991.)

“Minister” means the Minister responsible for Finance; (Amended A.4/1979.)

“officer” means a person employed on any duty relating to customs, fiscal excise or sales duty by order or with the concurrence of the Commissioner whether such order has been given or such concurrence has been expressed before or after the performance of the said duty; (Amended K.O-I-C. 17/1976.)

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“ordinary duty” means any duty specified in Part 1 or 2 of Schedule No. 1;

“owner” includes any person lawfully acting on behalf of the owner;

“package” means any container, wrapping or outer cover and its contents, or any bundle or single piece in the case of unpacked goods;

“pilot”, in relation to any aircraft, means any person having charge of such aircraft;

“place of entry” means a place of entry appointed or prescribed under section 5;

“plant” includes vessels, utensils, appliances and fittings;

“Republic” means the Republic of South Africa and includes any area in respect of which the Government of South Africa is a contracting party to the General Agreement on Tariffs and Trade;

“rule” means a rule made by the Commissioner under this Act;

“sales duty” means any duty leviable under Part 3 of Schedule No. 1 on any goods which have been manufactured in or imported into Swaziland;

“sales duty goods” means any goods specified in Part 3 of Schedule No. 1 which have been manufactured in or imported into Swaziland;

“Schedule” means any Schedule referred to in section 47 as amended from time to time under this Act, and includes the General Notes to any such Schedule;

“Secretary” (Repealed A.11/1988.)

“spirits” includes, subject to section 27, all descriptions of brandy, whisky, liqueur, rum, cane spirit, vodka, mixed spirit, rectified spirit, spirit aperitif, spirit cocktail or gin;

“still” means any apparatus for, or capable of, distilling spirits and includes any part thereof;

“still maker” means a person who manufactures or imports stills for sale and includes a person who repairs stills for reward;

“territory” means a country and includes a group of countries associated in a customs or economic union;

“transit shed” means a shed appointed or prescribed under section 5(g);

“vehicle” means any aircraft, train, motor car, van, truck, cart, barrow, boat, vessel, or other conveyance of any kind whatsoever, and includes the fittings, furnishings and equipment thereof, and also pack animals and their harness and tackle;

“wine-grower” means a farmer who cultivates vines on land in his own occupation and who produces on such land wine from grapes grown on such vines or delivers grapes grown on such vines to a wine-growers’ co- operative agricultural society for the manufacture of wine;

“worts” means a liquid substance containing saccharin matter before fermentation has commenced. (2) For the purposes of the Agreement concluded under section 51 with the Government of the Republic of Botswana, the Kingdom of Lesotho and the Republic of South Africa and published by Legal Notice No. 71 of 1969 on 12 December, 1969 — (a) “customs duty” includes any duty leviable under Part 4 of Schedule No. 1 on goods imported into Swaziland and, except for the purposes or articles 13 and 14 of the said agreement, any duty leviable under Part 8 of Schedule No. 1 on goods imported; (b) “excise duty” includes, except for the purposes of articles 13 and 14 of the said agreement, any duty leviable under Part 8 of Schedule No. 1 on goods manufactures in the common customs area. (Added A.5/1991.)

PART II

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ADMINISTRATION, GENERAL DUTIES AND POWERS OF COMMISSIONER AND OFFICERS, AND APPLICATION OF ACT

Commissioner to administer Act.

3. (1) The Commissioner shall, subject to the direction of the Minister, be charged with the administration of this Act, including the interpretation of the Schedules and may designate an officer to be the controller in relation to any area or matter. (2) The controller shall perform his duties and exercise his powers under this Act with due regard to any instructions issued by the Commissioner. (3) Any duty imposed or power conferred on the Commissioner may be performed or exercised by the Commissioner personally or by an officer under a delegation from or under his control or direction. (4) Any decision made and any notice or communication signed or issued by any such officer may be withdrawn or amended by the Commissioner or by the officer concerned (with effect from the date of making the decision or signing or issuing the notice or communication or the date of withdrawal or amendment thereof) and shall, until it has been so withdrawn, be deemed, except for the purposes of this subsection, to have been made, signed or issued by the Commissioner.

General duties and powers of officers.

4. (1) Subject to the laws governing the public service, officers employed in the department shall act under the control and direction of the Commissioner. (2) No officer shall be directly or indirectly financially interested in the manufacture or sale or importation of or trade in imported, excisable goods or sales duty goods. (3) No officer shall disclose any information relating to any person, firm or business acquired in the performance of his duties, — (a) for the purposes of this Act; or (b) when requiring to do so as a witness in a court of law; or (c) to the Commissioner of Taxes or any officer in the Office of that Commissioner and designated by that Commissioner, for the purposes of any law with the administration of which he is charged. (Amended A.5/1991.) (4) For the purposes of this Aet any officer may — (a) without previous notice, at any time enter any premises whatsoever and make such examination and enquiry as he deems necessary; (b) while he is on the premises or at any other time require from any person the production then and there, or at a time and place fixed by the officer, of any book, document or thing which by this Act is required to be kept or exhibited or which relates to or which he has reasonable cause to suspect relates to matters dealt with in this Act and which is or has been on the premises or in the possession or custody or under the control of any such person or his employee; (c) at any time and at any place require from any person who has or is believed to have the possession or custody or control of any book, document or thing relating to any matter dealt with in this Act, the production thereof then and there, or at a time and place fixed by the officer; and (d) examine and make extracts from and copies of any such book or document and may require from any person an explanation of any entry therein and may attach any such book, document or thing as in his opinion may afford evidence of any matter dealt with in this Act. (Amended A.5/1991.) (5) An officer may take an assistant or a member of the police force with him on to any premises. (6) Any person in connexion with whose business any premises are occupied or used, and any person employed by him shall furnish such facilities as may be required at any time by an officer for entering such premises and for the exercise of his powers under this section.

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(7) If an officer, after having declared his official capacity and his purpose and having demanded admission into any premises, is not immediately admitted, he and any person assisting him may at any time, but at night only in the presence of a member of the police force, break open any door or window or break through any wall on the premises for the purpose of entry and search. (8) An officer or any person assisting him may at any time break up any ground or flooring on any premises for the purpose of search and if any room, place, safe, chest, box or package is locked and the keys thereof are not produced on demand, may open such room, place, safe, chest, box or package in any manner. (Amended A.5/1991.) (9) An officer may require any person to appear before him at any time and place stipulated by the officer and may then and there question such person, either alone or in the presence of any other person, as he thinks fit, with respect to any matter dealt with in this Act. (10) An officer may question any person (either alone or in the presence of another, as he thinks fit) in respect of any matter dealt with in this Act if he — (a) finds such person on premises entered in terms of this section; or (b) has reasonable grounds for believing such person to be, or to have been employed on premises, or in possession, custody, or control of anything in respect of which this Act is applicable. (11) An officer may stop and board any vehicle and may search any such vehicle or any person found therein or thereon for goods upon which duty has not been paid, or in respect of which he has reasonable cause to believe that there has been a contravention of this Act, and may in pursuance of his duties remain on such vehicle unhindered. (12) Any officer may stop any person whom he has reason to suspect of having secreted about him or in his possession dutiable goods or goods in respect of which this Act has been contravened and he may search such person. (13) Any person may, before being searched in terms of this section, require the officer concerned to take him before the controller who may in his discretion discharge that person or direct that he be searched: Provided that this subsection shall only apply if such person is stopped within an airport control area and during the prescribed working hours of the controller. (14) A female shall only be searched by a female. (15) If in pursuance of his duties under subsection (8) or (11) the officer finds any room, cabin, place, safe, chest, box or package to be locked and the keys thereof are not produced on demand he may open it in any manner. (16) Any officer may lock up, seal, mark or fasten or otherwise secure any warehouse, store, room, cabin, place, vessel, appliance, utensil, fitting, vehicle or goods if he has reason to believe that this Act has been or is likely to be contravened in respect thereof or in connexion therewith.

PART III

IMPORT, EXPORT AND TRANSIT OF GOODS

Appointment of places of entry, authorized roads and routes, etc.

5. (1) Subject to such conditions as he may specify, the Commissioner may by rule appoint or prescribe — (a) any place to be a place of entry for Swaziland, through which goods may be imported or exported or where goods may be landed for transit, where any person entering or leaving Swaziland may disembark or embark or where goods may be entered for customs, excise and sales duty purposes; (b) any road or route, including a railway, over which any person may enter or leave Swaziland or imported goods or goods intended for export or transit carriage may enter or leave Swaziland or may be carried from any one point to any other point or the means of carriage of such goods; (c) any place as a place where a customs, excise and sales duty warehouse may be established; (d) any place for such particular and limited purpose and for such period as may be specified;

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(e) any place to be a customs, excise and sales duty airport at which aircraft entering Swaziland shall first land, from which aircraft leaving Swaziland shall finally depart, through which goods may be imported or exported or where goods may be landed for transit or where any person entering or leaving Swaziland may disembark or embark; (f) any place at any appointed place of entry or at any customs, excise and sales duty airport for the landing or embarkation of persons and the landing, loading or examination of goods, including baggage; (g) any shed as transit shed into which goods before due entry thereof may be removed from any vehicle; (h) any entrance and exit, general or special, to or from any duty airport; and (i) the hours during which a place, road, route, shed, entrance or exit appointed or prescribed under this subsection may be used for the purposes specified in this subsection; (j) container terminals where containers may be landed for transit, coastwise carriage, delivery to a container depot or, after their contents have been duly entered, delivery to importers, or where containers may be shipped for export; (Added A.10/1978.) (k) places where container depots may be established for the storage, detention, unpacking or examination of containers or the contents of containers, for the delivery to importers of the contents of containers after such contents have been duly entered or for the packing of containers for export. (Added A.10/1978.)(1bis) Any place outside Swaziland may be deemed by the Commissioner to be a place of entry for Swaziland through which goods may be imported or exported, or where goods may be landed for transit or where goods may be entered for customs and excise purposes. (Added A.11/1988.) (2) If any places, roads, routes, means of carriage, sheds, entrances, exits or container terminals, as the case may be, have been appointed or prescribed by the secretary under and paragraph of subsection (1), only such places, roads, routes, means of carriage, sheds, entrances, exits or container terminals so appointed or prescribed may, subject to subsection (3), be used or employed for the purposes for which they have been so appointed or prescribed under such paragraph, and, if any hours have been prescribed under subsection (1)(i) during which any places, road, route, shed, entrances or exit may be used, such place, road, routs, shed, entrances or exit shall be used only during such hours. (Added A.10/1978.) (3) The pilot of an aircraft arriving in Swaziland shall, unless the Commissioner has granted him special permission to land elsewhere, make his first landing at a duty airport and shall forthwith take his aircraft to the examination station at that airport: (Amended A.5/1991.) Provided that this subsection shall not apply if — (a) the pilot is forced by stress of weather, accident or other circumstances beyond his control to land at a place not so appointed; (b) he reports to the controller nearest the place where he was forced to land or to. the controller at the first place of entry or duty airport at which he next arrives; and (c) he complies with the regulations. (4) Subject to this Act, any person on foot or in charge of a vehicle entering or leaving a duty airport or entering or leaving Swaziland by road at a place where an officer is stationed, shall stop or bring such vehicle to a stop for the purpose of being searched or examined by such officer should he so require, and such person shall not proceed or cause his vehicle to proceed until permitted by such officer. (5) If any such person fails to stop, or to bring such vehicle to a stop or proceeds or causes such vehicle to proceed without permission, the officer may take such action, including the use of any force which may be reasonably necessary to stop such person or vehicle, and no person shall be entitled to any compensation for any loss or damage arising out of any bona fide action of an officer under this section. (6) The owner or occupier of any transit shed shall, if so required by the Commissioner, provide accommodation to the satisfaction of the Commissioner to any officer whom the Commissioner considers necessary to station at such shed.

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Report of arrival or departure of aircraft.

6. (1) The pilot of any aircraft arriving in Swaziland, whether with or without goods or passengers, shall within three hours after landing at any place appointed as a customs, excise and sales duty airport under section 5 or within such further time as the Commissioner may allow — (a) make a written report of its arrival with as many duplicates or extracts thereof as the controller may require; (b) make and subscribe to a declaration as to the truth of the report before the controller and answer all such questions concerning the aircraft, the cargo and stores, and the crew, passengers and flight as may be put to him by the controller; and (c) produce, if required, the official log books for the flight, the stowage plans and any other documents in his possession relating to the cargo, stores, crew, passengers and flight. (Amended A.7/1981; A.5/1991) (2) The report referred to in subsection (1) shall contain such particulars as the Minister may prescribe by regulation and shall include — (a) a list of the passengers; (b) a list of all containers on board consigned to such airpoty and such list shall specify — (i) the container serial number and the name of every owner concerned; (ii) the classes of the containers; (iii) the destination of each such container; (c) a manifest, in the prescribed form, of all goods consigned to such airport and a separate manifest of such goods packed in each container; and (d) such other information as the secretary may require. (Amended A.10/1978.) (3) Subject to section 8 any goods which have not been recorded in such manifest shall be declared to the controller and delivered to him. (4) The pilot of any aircraft bound from any place within Swaziland to any place outside Swaziland shall appear before the controller and deliver to him a “report outwards” in the prescribed form together with a full account of the cargo laden on board such aircraft and shall make and subscribe to a declaration as to the truth of such report and account and answer all questions as may be put to him by the controller. (Amended A.10/1978; A.5/1991.) (5) (Repealed A.10/1978.) (6) The pilot of an aircraft destined for a place outside Swaziland shall not cause or permit the aircraft to depart from any place of entry or duty airport without first obtaining from the controller a certificate of clearance or transire for the intended flight and the pilot shall not after departure land at any place in Swaziland other than a place of entry or a duty airport unless forced to do so by stress of weather, accident or other circumstances beyond his control. (Amended A.5/1991.) (7) If an aircraft in respect of which a clearance has been issued at any place in terms of this section does not depart from such place within thirty-six hours of the time when such clearance was issued, or within such further time as the controller may allow, such clearance shall lapse and the pilot shall obtain fresh clearance before causing or permitting the aircraft to depart. (8) If any report required by this section is found to be in any way incomplete or incorrect, the controller may, if he is satisfied that there was no fraudulent intention, permit the pilot to amend it. (9) The pilot of an aircraft may, with the permission of the Commissioner and subject to such conditions as he may impose, retain on board goods consigned to any airport for landing at any other airport or land such goods at any airport to which they were not consigned. (10) The Commissioner may. subject to such conditions as he may impose, exempt any aircraft or any class or kind of aircraft from all or any of the provisions of this section.

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Boarding and searching of aircraft.

7. (1) The controller may board any aircraft arriving at any airport in Swaziland and stay on board unhindered for as long as he deems necessary for the proper performance of his duties. (2) The controller shall have free access to and the right to rummage in every part of such aircraft, to examine all goods on board, to mark any goods before landing, and to lock up, seal, mark or otherwise secure any goods on board such aircraft, including its radio and other apparatus and may demand from the pilot thereof the production of any document to which this Act relates. (3) If any lock, seal or mark placed upon goods on board any aircraft by the controller under this section is wilfully opened, broken, obliterated or altered, or if any goods which have been locked, sealed, marked or otherwise secured under this section are removed without the consent of the controller, the pilot of such aircraft shall be guilty of an offence unless he proves that it was not possible for him to have prevented the act in question.

Sealing of goods on board aircraft.

8. (1) For the purposes of this section “sealable goods” means — (a) tobacco, cigars, cigarettes and any other preparations of tobacco or substitutes therefor; (b) any spirits or alcoholic beverages; (c) opium, preparations of opium in any form and opium outfits; (d) cocaine, preparations of cocaine and other habit-forming drugs; (e) saccharin, sweetening substances containing saccharin and substitutes for saccharin; (f) articles brought or intended as gifts or for sale or exchange; (g) all non-duty-paid imported goods and all excisable goods and sales duty goods taken on board as aircraft stores at a place in Swaziland; and (h) any other goods which may from time to time be declared by the Commissioner by rule to be sealable goods. (2) On arrival of any aircraft at any place in Swaziland directly from a place outside the common customs area the pilot thereof shall, on the prescribed form, declare all sealable goods on board the aircraft which are unconsumed stores of such aircraft, and every member of its crew shall, on the prescribed form, declare all sealable goods which are his personal property or in his possession, and the controller may seal up all such sealable goods. (3) The controller may permit surplus stores to be entered for home consumption or for warehousing. (4) The controller may. by direction of the Commissioner, in addition to sealable goods, seal up any goods which are unconsumed stores of any aircraft or which are in the possession of the pilot of such aircraft, any member of its crew, or any of its passengers. (5) Except in accordance with the rules no person shall break or disturb any seal placed by the controller on any goods in terms of this section while such aircraft remains in Swaziland. (6) Except as provided in subsection (3) no stores may be landed without the per-mission of the controller and all goods acquired on an aircraft shall, if landed, be declared to the controller for the purposes of payment of any duty due thereon.

When goods deemed to be imported.

9. (1) For the purposes of this Act goods consigned to or brought into Swaziland shall be deemed to have been imported into Swaziland — (a) in the case of goods consigned to a place in Swaziland in an aircraft, at a time when such aircraft, on the flight in question, first came within the control area of the airport authority at such place, or at the time of the landing of such goods at the place of their actual discharge in Swaziland if such aircraft did not on such flight call at the place to which the goods were consigned or if such goods were discharged before arrival of such aircraft at the place to which they were consigned;

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(b) in the case of goods not consigned to a place in Swaziland but brought thereto by, and landed therein from, an aircraft at the time when the goods were so landed; (c) subject to subsection (2) in the case of goods brought to Swaziland overland, at the time when the goods entered Swaziland; (d) in the case of goods brought to Swaziland by post, at the time of importation in terms of paragraph (a), (b) or (c) according to the means of carriage of such goods; and (e) in the case of goods brought to Swaziland in a manner not specified in this section, at the time specified in the General Notes to Schedule No. 1 or, if no time is specified in the General Notes in respect of the goods in question, at the time such goods are considered by the Commissioner to have entered Swaziland. (Amended A.5/1991.) (2) For the purposes of subsection (1) a place outside Swaziland deemed by the Commissioner under section 5(1bis) to be a place of entry for goods consigned to Swaziland shall be deemed to be a place in Swaziland in respect of goods consigned to such place for removal to Swaziland overland. (Amended A.11/1988.)

No landing or despatch of goods without permission.

10. (1) Subject to any regulations, no goods imported into Swaziland by aircraft shall, without the permission of the controller, be landed, removed or otherwise dealt with, and any goods landed with such permission shall before due entry thereof be placed in a transit shed or other place approved by the controller: Provided that any goods intended for transit carriage may, without such permission, be landed by the pilot of an aircraft at any place of entry for direct removal from such place to any place outside the common customs area. (Amended A.10.1978; A.5/1991.) (2) All goods landed from an aircraft before due entry thereof and which are placed in a transit shed or other place approved by the controller under subsection (1) shall be deemed to have remained on board the aircraft, and as long as they are in such shed or place, the pilot shall be responsible therefor in all respects and liable for the duty thereon as if they had not been removed from such aircrafts. (3) Subject to any regulations, no goods shall, without the permission of the controller, be loaded into an aircraft for export from Swaziland. (4) No goods or ballast shall, without the permission of the controller, be loaded on an aircraft at any place in Swaziland before all inward cargo for such place has been discharged. (5) Subject to subsection (2), any regulations and any conditions which he may impose, the controller may permit the landing at any place without due entry of goods not consigned to such place from an aircraft which has sustained damage or is in distress.

Goods imported or exported overland.

11. (1) Upon or before arrival at a railway station of any train with any goods thereon from beyond the borders of Swaziland, the station master or other person in control of the station or any other person designated by the railway authority concerned by arrangement with the Commissioner, shall deliver to the controller a copy of all advice and delivery notes received by him relating to the goods consigned to that station by that train. (Amended A.5/1991.) (2) Such station master or other person shall not permit any such goods to be removed from the railway premises without the written sanction of the controller. (3) The conductor, guard or other person in charge of a train shall on demand by any officer furnish him with all information at his disposal in respect of any goods on such train. (4) The person in charge of any vehicle (other than an aircraft or a railway train) whether or not conveying goods, which arrives by land at any place in Swaziland, shall come to the office of the controller nearest to the point at which he crossed the border or the office of the controller which is most conveniently situated in relation to that point before unloading any goods or in any manner disposing of such vehicle or goods, and make a full written report to such controller

373 concerning such vehicle or goods, the journey and the destination of the goods, and shall make and subscribe to a declaration as to the truth of such report. (Amended A.5/1991.) (5) Such person shall fully and truthfully answer all questions put to him and produce any way-bills or other documents demanded of him by such controller. (6) No person shall remove a vehicle referred to in subsection (4) from the office referred to in that subsection until due entry has been made of the vehicle and the goods carried thereon or until permission for removal has been granted by the controller. (7) Every person arriving in Swaziland overland in any manner whatsoever shall, whether or not he has any goods in his possession, come to the office of the controller nearest to the point at which he crossed the border or the office of the controller which is most conveniently situated in relation to such point, and there report to the controller the circumstances in which he entered Swaziland. (Amended A.5/1991.) (8) If such person has any goods in his possession he shall furnish such controller with full particulars thereof, and fully and truthfully answer all questions put to him by such controller. (9) Such person shall not dispose of any goods in his possession in any manner until they have been released by the controller. (10) Subsections (7), (8) and (9) shall not apply to persons arriving in Swaziland by train or by air who pass through or disembark at a place where a controller is stationed. (11) Except with the permission of the controller and subject to such conditions as the Commissioner may specify, no person in charge of any vehicle (other than an aircraft) used to export goods overland shall remove such vehicle or goods beyond the borders of Swaziland. (Amended A.5/1991.) (12) The Commissioner may grant such person a general permission.

Goods imported or exported by post.

12. (1) For the purposes of entry and collection of duty on goods imported into Swaziland by post, any form or label completed by the sender in respect of the postal item in question and on which the particulars necessary for the assessment of duty are set forth, shall be deemed to be an entry made under the provisions of this Act, and the particulars on any such form or label shall, for the purposes of this Act, be taken as the declaration to be made by the importer under section 37: Provided that the Minister may by regulation exclude from the provisions of this subsection any goods of a class or kind specified in such regulation or any such goods imported in circumstances so specified. (Amended A.11/1988.) (2) (Repealed A.11/1988.) (3) (a) Notwithstanding anything contained in subsection (1), any goods imported by post which the addressee desires to enter for warehousing, or for removal or export in bond, or under any heading or item of Schedule No. 1 which requires that a certificate be given or a condition be complied with, or under any item of Schedule No. 3, or under any item of Schedule No. 2, 4, 5, or 7 specified by the Commissioner after consultation with the Managing Director of the Posts and Telecommunications Corporation shall be so entered at a customs, excise and sales duty office before a Controller. (b) Notwithstanding anything contained in subsection (1), any goods imported by such class of addressee, or any goods imported by post and of such class or kind, as may be specified by the Commissioner after consultation with the Managing Director of the Posts and Telecommunications Corporation, shall be entered at a customs and excise office before a Controller. (Amended A.11/1988; A.5/1991.) (4) In the case of goods exported by post, any form or label affixed to or completed in respect of a postal item, on which a description of the contents and their value are set forth, shall be deemed to be a bill of entry export as required by this Act. (Amended A.11/1988.) (5) Notwithstanding anything contained in subsection (1) or in any other law but subject to the provisions of subsection (3), any person importing goods by post shall submit the invoice in respect of such goods to the postmaster concerned, and no person shall receive, remove, take, deliver or in any manner deal with or in such goods unless the correct duty has been paid to that postmaster. (Added A.11/1988.)

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(6) Any postmaster may at any time detain any imported postal item under his control and cause such postal item to be removed to the Controller, who may examine such postal item, and if he finds that the goods therein do not agree in all respects with the particulars relating to the value, description or quantity appearing on the form or label referred to in subsection (1) or the invoice concerned, such goods shall notwithstanding anything to the contrary in any other law be liable to forfeiture. (Added A.11/1988.)

Persons entering or leaving Swaziland and smugglers.

13. (1) Any person entering or leaving Swaziland shall, in such manner as the Commissioner may determine, unreservedly declare all goods in his possession which he brought with him into Swaziland or proposes taking with him beyond the borders of Swaziland and shall furnish an officer with full particulars thereof, answer fully and truthfully all questions put to him by such officer and, if required by such officer to do so, produce and open such goods for examination by the said officer and shall pay the duties assessed by such officer to the Controller. (Amended A.11/1988.) (1bis) Any declaration made under subsection (1) shall for the purposes of this Act be deemed to be an entry for home consumption or export, as the case may be. (Added A.11/1988.) (2) The controller may in all cases where a person is detected or is concerned in or is suspected by the controller of an attempt to import, export, land or remove goods illegally or to evade the payment of duty on any goods, forthwith take the person concerned before a magistrates’ court to be dealt with, or may detain such person in a police station or other suitable place, until he can be taken before such court.

Opening of package in absence of importer or exporter.

14. The controller may, in the absence of the importer or exporter of any package imported into or landed in or exported from or suspected by the controller to have been imported into or landed in or exported from Swaziland, open and examine such package at the importer’s or exporter’s risk and expense: Provided that wherever possible the controller shall first make all reasonable efforts to ascertain the whereabouts of such importer or exporter and afford the said importer or exporter the opportunity of himself appearing before the controller and opening the package in question. (Amended A.5/1991.)

Government warehouse.

15. (1) If any goods are taken to and secured in any Government warehouse the Commissioner may require such rent as may be prescribed under section 120(1) to be paid for such period as the goods remain therein. (2) Any officer who has the custody of any goods in any Government warehouse may refuse delivery thereof from such warehouse until he has been furnished with proof to his satisfaction that — (a) the person claiming the goods is lawfully entitled to them; (b) all relevant provisions of this Act or any law relating to the import, export or transit of goods have been complied with; and (c) freight and other charges, including landing charges, and rent due in respect of such goods have been paid. (3) The Government or any officer shall not be liable in respect of any loss or diminution of or damage to any goods in a Government warehouse or in respect of loss or damage sustained by reason of wrong delivery of such goods. (Amended A.7/1981.) (4) If a warrant or permission for the removal of any goods from a Government warehouse has been granted by the controller, and the person to whom such warrant or permission has been granted does not immediately remove such goods from the warehouse they may, notwithstanding any other provisions of this Act, in the discretion of the Commissioner be dealt with as if they were goods in respect of which entry has not been made under this Act.

Removal of goods in bond.

16. (1) Notwithstanding any other provision in this Act —

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(a) the importer or owner of any imported goods landed in Swaziland or the manufacturer, owner, seller or purchaser of any excisable goods or sales duty goods manufactured in a duty warehouse or the licensee of a duty warehouse in which dutiable goods are manufactured or stored may remove such goods in bond to any place of entry or warehousing place or to any place outside Swaziland: Provided that such goods manufactured or stored in a duty warehouse may only be so removed to any such warehousing place in Swaziland or any place in a country in the common customs area approved by the government of that country for re-warehousing at that place in another duty warehouse; (Amended A.5/1991.) (b) the pilot of an aircraft or person in charge of a vehicle from which any goods were landed at a place in Swaziland to which such goods were not consigned may remove them in bond to the place to which they were consigned: Provided that evidence of the identity of such goods and that such goods were consigned to the place to which they are proposed to be removed is produced to the controller before entry for removal; (c) the owner of, or a person beneficially interested in, any goods which are in transit through Swaziland from another territory in Africa other than one within the common customs area to a place outside Swaziland which is not within the common customs area may remove such goods in bond from the place where they entered Swaziland to the place from which they are destined to leave Swaziland; (d) a container operator may remove any container in bond to the container depot or inland container terminal to which it was consigned, without furnishing the security provided for in subsection (6), and the manifest in terms of section 6(2)(c) of the goods packed in such container shall be deemed to be due entry for removal in bond of that container; (Added A.10/1978.) (e) the pilot of an aircraft may remove in bond any goods landed from an aircraft at a place in Swaziland and for which an air cargo transfer manifest has been Completed, to their place of entry for Swaziland, without furnishing the security provided for in subsection (6), and such aircargo transfer manifest shall be deemed to be due entry for removal in bond of such goods. (Added A.10/1978.) (2) In addition to liability for duty incurred by a person under any other provision of this Act, the person who removes any goods in bond in terms of subsection (1) shall, subject to subsection (3), be liable for the duty on all goods which he so removes. (3) Subject to subsection (4) liability for duty in terms of subsection (2) shall cease when it is proved to the satisfaction of the Commissioner by the person concerned, in the case of goods — (a) removed to a place in the common customs area, that such goods have been duly entered at that place; or (b) which were destined for a place beyond the borders of the common customs area, that such goods have been duly taken out of that area. (Amended A.5/1991.) (4) If the person concerned fails to submit any such proof as is referred to in subsection (3) within a period of thirty days from the date on which the goods in question were entered for removal in bond, he shall upon demand by the secretary forthwith pay the duty due on such goods. (Amended a.10/1978.) (5) No goods shall be removed in bond under this section from the place where they were landed in Swaziland or where they entered Swaziland until they have been entered for removal in bond and such entry shall be deemed to be due entry in respect of such goods at that place for the purposes of this Act. (6) No entry for removal in bond shall be tendered by or may be accepted from a person who has not furnished such security as the Commissioner may require and the Commissioner may at any time require that the form, nature or amount of such security shall be altered in such manner as he may determine. (7) The removal in bond of goods shall be subject to any regulations and such conditions as the Commissioner may impose in respect of such goods or any class or kind of such goods or goods removed in circumstances specified by him and the Commissioner may refuse to accept bills of entry for the removal in bond of goods from a remover who has persistently failed to comply with such regulation, or conditions or who has committed an offence referred to in section 80.

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(8) Goods removed in bond shall not be delivered or removed from the control of the department at the place of destination in Swaziland except upon due entry according to the first account taken of such goods on landing or on entry for removal in bond thereof or according to the contents of the packages containing such goods as reflected on the invoice issued by the supplier in respect of such goods, and payment of any duty due, including, subject to section 75(19), any duty due on any deficiency. (9) The Commissioner may refuse the removal in bond of goods in respect of which this Act has not been complied with or which are liable to forfeiture. (10) The Government or any officer shall not be liable for any loss or damage of whatever nature to any goods removed in bond or for any loss or damage sustained by reason of wrong removal or delivery, unless it is shown that such loss or damage was caused by the recklessness or wilful misconduct of such officer. (11) Notwithstanding this section the Commissioner may, subject to such conditions as he may impose in respect of goods in transit through Swaziland from any other territory in Africa to any destination outside Swaziland, or any class or kind of such goods or any such goods removed in bond in circumstances specified by him, allow them to be entered for removal in bond at a place other than the place where they entered Swaziland. (12) The Commissioner may determine the roads and routes and the means of carriage of any goods or any class or kind of goods removed in bond or any such goods carried in circumstances specified by him. (13) No person shall, without the permission of the Commissioner, divert any goods removed in bond to a destination other than the destination declared on entry for removal in bond or deliver such goods or cause them to be delivered in Swaziland except into the control of the department at the place of destination. (14) The Commissioner may specify the particulars to be reflected on the entry for removal in bond and the documents to be produced by the remover upon entry for removal in bond in respect of any goods or any class or kind of goods removed in bond or any such goods removed in circumstances or to a destination specified by him.

Exportation of goods from duty warehouse.

16bis (1) Notwithstanding any liability for duty incurred thereby by any person in terms of any other provision of this Act, any person who exports any goods from a duty warehouse to any place outside the common customs area shall, subject to the provisions of subsection (2), be liable for the duty on all goods which he so exports. (2) Subject to subsection (3), any liability for duty in terms of subsection (1) shall cease when it is proved to the satisfaction of the Commissioner by the exporter that the said goods have been duly taken out of the common customs area. (3) If the exporter fails to submit any such proof as is referred to in subsection (2) within a period of 30 days from the date on which the goods concerned were entered for export, he shall upon demand by the Commissioner forthwith pay the duty due on those goods. (4) No goods shall be exported in terms of this section until they have been entered for export. (5) No such entry for export shall be tendered by or may be accepted from a person who has not furnished such security as the Commissioner may require, and the Commissioner may at any time require that the form, nature or amount of that security be altered in such manner as he may determine. (6) The said exportation of goods shall be subject to the regulations and such conditions as the Commissioner may impose in respect of the goods concerned or any class or kind of those goods or those goods exported in circumstances specified by him, and the Commissioner may refuse to accept bills of entry for the said exportation of goods from an exporter who has persistently failed to comply with the said regulations or conditions or who has committed an offence referred to in section 80. (7) The Commissioner may refuse the said exportation of goods in respect of which a provision of this Act has not been complied with or which are liable to forfeiture. (8) The Commissioner may determine the roads and routes and the means of carriage of any goods so exported or any class or kind of those goods or any such goods carried in circumstances specified by him. (9) No person shall, without the permission of the Commissioner, divert any goods so exported to a destination other than the destination declared on entry for exportation.

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(10) The Commissioner may specify the documents to be produced by the exporter upon entry for exportation in respect of any goods so exported or any class or kind of those goods or any such goods exported in circumstances or to a destination specified by him. (Added A.5/1991.)

PART IV

DUTY WAREHOUSE — STORAGE AND MANUFACTURE OF GOODS IN DUTY WAREHOUSE

Duty warehouse.

17. (1) The Commissioner may license duty warehouses established at any place appointed for that purpose under this Act, and approved by him for the storage of such dutiable imported or such dutiable locally produced goods or for the manufacture of such dutiable goods from such imported or such locally produced materials or such imported and such locally produced materials as he may approve in respect of each such warehouse. (2) Such duty warehouses may be licensed either for the storage of dutiable goods or for the manufacture of dutiable goods, but the Commissioner may license a duty storage warehouse and a duty manufacturing warehouse on the same premises provided they are separated in a manner approved by him. (3) The controller may, in addition to any lock used by a licensee, cause any duty warehouse to be locked with a Government lock for such period as he deems fit, and no person shall remove or break such lock or enter such warehouse or remove any goods therefrom while it is so locked without the permission of the controller. (4) The controller may at any time take stock of the goods in any duty warehouse and duty shall, subject to section 18(8), forthwith be paid upon any deficiency. (5) If the stock is found to be greater than the quantity which should be in such duty warehouse, the excess shall, subject to section 75(19) be debited to stock and the duty thereon paid on entry for home consumption. (6) The Government or any officer shall in no case be liable for any loss or damage of whatever nature to any goods in a duty warehouse or for any loss or damage sustained by reason of any wrong delivery of such goods unless it is shown that such loss or damage was caused by the recklessness or wilful misconduct of such officer. (7) In addition to any liability for duty incurred by any person under this Act, the licensee of a duty warehouse shall, subject to subsection (8), be liable for the duty on all goods stored or manufactured in such warehouse from the time of their receipt into such warehouse or the time of their manufacture in such warehouse, as the case may be. (8) Subject to subsection (9), any liability for duty under subsection (7) shall cease when it is proved to the satisfaction of the Commissioner by the licensee concerned that the goods in question have been duly entered under section 18(6) and have been delivered or exported in terms of such entry. (9) If the licensee concerned fails to submit any proof required by subsection (8) in respect of goods in the duty warehouse in question within the period specified in any regulations for which goods of that class or kind may be stored or kept in a duty warehouse or if the licensee commits an offence under this Act in respect of any goods stored or kept in such warehouse he shall upon demand by the Commissioner forthwith pay the duty due on such goods.

Goods in duty warehouse.

18. (1) Any dutiable imported or dutiable locally produced goods and any beverages produced from excisable spirits in pursuance of any permission granted under section 29(2) being goods or beverages of a class or kind approved by the Commissioner in respect of each duty warehouse, may be entered for storage in a duty warehouse with deferment of payment of duty and no such goods or beverages shall be removed to or placed in a duty warehouse until they have been so entered. (2) Such entry shall, for the purpose of this Act, be deemed to be due entry in respect of such goods at the place of importation or manufacture. (3) (a) Upon the entry and landing of imported goods for storage in or the transfer of dutiable locally produced goods to a customs and excise warehouse or the transfer of dutiable manufactured goods from a customs and excise 378 manufacturing warehouse to a customs and excise storage warehouse, the licensee of any such warehouse in which such goods are stored or to which such goods are so transferred shall take and record an accurate account of such goods, which shall include, subject to any deduction that may be allowed under section 75(18), the debiting to stock of any excess found on receipt of such goods at such warehouse. (b) The said licensee shall immediately upon the receipt of such goods report to the Controller any such excess so found. (Amended A.2/1985.) (4) Subject to section 75(19) and subsection (8) no allowance for loss or diminution of any nature which occurs while goods are being transported to or kept in such warehouse or transported from one warehouse to another or removed in bond shall be allowed. (5) Goods on which no duty is payable and of a class or kind approved by the Commissioner in respect of each warehouse may, subject to such conditions and to the keeping of such records as the Commissioner may in each case determine, without entry be taken into a duty warehouse for the purpose of being used in the manufacture of or in conjunction with dutiable goods. (6) No goods which have been stored or manufactured in a duty warehouse shall be taken to or delivered from it except in accordance with any regulation and upon due entry for one or other of the following purposes: (a) home consumption and payment of any duty due on them; (b) re-warehousing in another duty warehouse or removal in bond as provided in section 16; (Amended A.5/1991.) (c) (Repealed A.5/1991.) (d) export from a duty warehouse, including the supply as stores for aircraft destined for a place outside the common customs area. (7) No person shall, without the permission of the Commissioner, divert any goods entered for removal from or delivery to a duty warehouse, except goods entered for payment of the duty due thereon, to a destination other than the destination declared on entry of such goods or deliver or cause such goods to be delivered in Swaziland except in accordance with this Act. (8) The duty on any deficiency in a duty warehouse shall be paid forthwith on demand after detection of such deficiency: Provided that in the case of goods manufactured in any duty manufacturing warehouse or in the case of goods in the process of manufacture and removal from one duty manufacturing warehouse to another such warehouse, the Commissioner may, subject to section 33(3), allow working, pumping, handling, processing and similar losses and losses due to natural causes, between the time when the liability for duty first arises and the time of removal of such goods from the warehouse in which the goods are so manufactured or in which that process of manufacture is completed, to the extent specified in Schedule No. 4, 6, or 7, if he is satisfied that no part of such loss was wilfully or negligently caused. (9) Goods packed for retail sale shall not be entered for storage in a storage warehouse unless they are packed in outer containers normally used in the wholesale trade in respect of such goods. (10) (Repealed A.2/1985.)

Special duty warehouse.

19. (1) The Commissioner may, subject to such conditions as he may in each case impose, license at any place in Swaziland special duty warehouses for such special purposes and for such period as he may specify, provided such security as he may require is furnished. (2) Unless the Commissioner otherwise indicates when licensing a special duty warehouse for the storage or manufacture of goods, the provisions of this Act in respect of duty storage warehouses or duty manufacturing warehouses or the storage or manufacture of goods in such warehouses shall apply to such special warehouse and to the storage or manufacture of goods therein, as the case may be.

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Sample of goods in duty warehouse.

20. The controller may, in accordance with the rules, permit samples of goods in a duty warehouse to be taken by the owner of such goods and may permit payment of duty thereon to be deferred until the goods from which such samples have been taken are entered for delivery from such warehouse for any purpose.

Storage or manufacture of prohibited goods.

21. The Commissioner may allow the storage or manufacture in a duty warehouse of goods the import, manufacture or disposal of which is prohibited or restricted under any law, provided such goods are stored or manufactured in such warehouse only for export or supply as stores for aircraft destined for places outside the common customs area.

Aircraft stores consumed in the common customs area.

22. If any goods taken from a duty warehouse under section 18(6) as stores aboard an aircraft destined for a place outside the common customs area, or goods shipped as stores for such aircraft outside Swaziland, are consumed, sold or disposed of on such aircraft at any place in the common customs area when the aircraft is not airborne or on the aircraft on a flight between any places in the common customs area, the pilot of such aircraft shall be liable for the duty on the goods so consumed, sold or disposed of and shall, upon demand by the Commissioner forthwith pay the duty due on such goods: Provided that the Commissioner may by rule exempt any class or kind of stores or aircraft to which the circumstances specified in such rule apply from any provision of this section. (Amended A.5/1991.)

Sorting, packing, etc. in duty storage warehouse.

23. Subject to this Act, the Commissioner may permit the licensee of a duty storage warehouse or the owner of any goods in such warehouse to sort, separate, pack or re-pack any goods in such warehouse and to make such alterations therein or such arrangements as may be necessary for the preservation of such goods or for the sale, export or other lawful disposal thereof.

Transfer of ownership of warehoused goods.

24. (1) Except with prior permission of the Commissioner — (a) the owner of any dutiable goods in a customs and excise warehouse may not enter into any agreement whereby — (i) his ownership of such goods is transferred to any other person; (ii) such goods are pledged or otherwise hypothecated in favour of any other person; (b) any person in whose favour goods referred to in paragraph (a) have been pledged or hypothecated may not enter into any agreement whereby any rights obtained by him by virtue of such pledge or hypothecation are ceded to any other person. (2) Any agreement entered into contrary to subsection (1) shall for the purposes of this Act be deemed to be null and void. (Amended A.11/1988.)

Special provisions in respect of duty manufacturing warehouse.

25. (1) Subject to this Act, goods liable to excise duty or sales duty may not be manufactured except under this section and except in a duty manufacturing warehouse licensed under this Act. (2) Notwithstanding subsection (1) spirits distilled by agricultural distillers shall be excluded from the requirement of manufacture in a duty manufacturing warehouse. (3) Notwithstanding subsection (1) excisable or sales duty goods may with the permission of the Commissioner be manufactured in a special duty warehouse licensed under section 19.

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(4) Subject to this Act, the Commissioner may, on such conditions as he may impose, permit the manufacture under this Part of any goods in any duty manufacturing warehouse if any of the goods used in the manufacture are liable to duty or if the goods so manufactured are dutiable. (5) Any dutiable goods brought into and intended for use in a duty manufacturing warehouse in the manufacture of goods liable to excise duty or sales duty shall be entered for home consumption and any duty due thereon shall be paid prior to such use. (6) No goods shall be manufactured in a duty manufacturing warehouse until all the premises and plant intended for use in connexion with such manufacture and the purpose for which they are to be used have been approved by and registered with the Commissioner. (7) Plans of the premises and plant to be used in connexion with such manufacture and of the location of the plant on such premises and particulars of any identifying numbers or marks on any plant shall be submitted to the controller before the commencement of manufacture and no alteration to such premises or plant shall be made without the prior permission of the Commissioner. (8) All operations in duty manufacturing warehouses shall be subject to supervision by officers. (9) Every licensee of a duty manufacturing warehouse shall, if required by the Commissioner, provide office accommodation and board and lodging to the satisfaction of the Commissioner, for any officer stationed at or visiting such warehouse for the purposes of this Act and any person providing such board and lodging shall be entitled to fair remuneration therefor. (10) The controller may give written instructions to any licensee specifying in what part of the warehouse any process in the manufacture shall be carried on and any material for use in manufacture and manufactured goods, respectively, shall be kept. (11) No licensee shall, without the written permission of the Commissioner, in a duty manufacturing warehouse carry on any business except that for which the warehouse is licensed and the premises and plant are registered. (12) No person shall, except with the written permission of the Commissioner — (a) use premises or plant required to be registered in terms of this Part for any purpose other than that detailed in such registration; (b) effect any alteration to any structure on such premises or to any such plant; (c) bring into or have in such premises any plant other than that detailed in such registration or remove any plant from such premises; or (d) place below the surface of the ground any pipe or tube for conveying any material or product in a warehouse unless such pipe or tube is enclosed in casing capable of being easily opened so that the pipe or tube is exposed to view. (13) The Commissioner may by rule prescribe the days on which, and the hours during which, any or all of the operations in a duty manufacturing warehouse (including the removal of goods) shall be carried out. (14) No distilling operation shall be commenced until the whole or any part of the distilling system or plant, as the Commissioner may require, has at the expense of the licensee been provided with fittings and requirements to permit of the insertion or affixing of customs, excise and sales duty meters, gauges, rods, locks and seals according to any regulations and to the satisfaction of the Commissioner for the purpose of securing such system or plant, and until such system or plant has been duly secured by a controller. (15) If a meter, rod, lock or fitting is tampered with or damaged, or if a pipe, cock, fastening or fitting connected with a still or vessel is pierced or damaged, the licensee shall forthwith repair or renew it to the satisfaction of the controller, or any officer may effect the repair or renewal at the expense of the licensee. (16) If any such tampering, damage or piercing has been directly or indirectly caused by the wilful act or by the neglect or with the connivance of the licensee or his employee, such licensee in addition to liability for the cost of the repair or renewal shall be guilty of an offence and the burden of proving that any such tampering, damage or piercing was not so caused shall rest upon the licensee.

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(17) The Commissioner may, subject to such conditions as he may impose, exempt the manufacture of any class or kind of goods from any provision of this section.

Ascertaining quantity of spirits by weighing.

26. (1) The quantity of spirits in any container maybe calculated by weighing or gauging. (2) In ascertaining the quantity of spirits by weighing, the tables prescribed in the regulations shall be used and the quantity ascertained in accordance with the said tables shall be deemed to be the true quantity of spirits for the purposes of this Act.

Classification of spirits.

27. No spirits distilled in Swaziland shall, for the purposes of this Act, be classed as being spirits of the product of the vine until such spirits have been so certified by the controller, and spirits not so certified shall be deemed to be spirits other than of the product of the vine.

Control of the use of spirits for certain purposes.

28. (1) No person shall use spirits, distilled from the product of the vine, in the manufacture of alcoholic beverages unless such spirits have been certified by the Minister to be suitable for such use: Provided that if the Minister declines to certify spirits as suitable for such use the manufacturer may re-distil such spirits or treat them by any method approved by the Minister who may in his discretion certify such spirits as suitable for use in the manufacture of alcoholic beverages. (2) The blending of brandy and the production from spirits of any other beverage or any other non-excisable goods shall be subject to such supervision by an officer as the Commissioner may in each case consider necessary. (3) Subsection (1) shall not apply to an agricultural distiller or a wine grower who manufactures alcoholic beverages under this Act for his private use.

Entry of spirits for use in manufacture.

29. (1) Spirits which have not been entered for home consumption shall not be used in the production of beverages or other non-excisable goods. (2) The Commissioner may, on such conditions as he may in each case impose, permit the use of spirits which have been entered for home consumption in the production of beverages in a duty storage warehouse and may, without prejudice to section 104, permit payment of the duty on any such spirits used in the production of beverages in any such warehouse to be deferred until the beverages are delivered from such warehouse. (3) No person shall, without the permission of the Commissioner, re-distil spirits which. have been entered for home consumption, and any such permission may be granted subject to such conditions as he may impose. (4) Beverages or other non-excisable goods produced in contravention of subsection (1) and any spirits re-distilled in contravention of subsection (3) shall be liable to forfeiture.

Ascertaining strength of spirits.

30. The strength of any spirits or spirituous preparations shall, for duty purposes, be ascertained in the manner prescribed by the Commissioner. (Amended A.7/1981.)

Requirements in respect of still.

31. Subject to section 63, no person shall distil spirits in a still which does not comply with the regulations as to capacity and construction: Provided that the Commissioner may exempt any still used for any purpose other than the manufacture of potable spirits from any such requirements for such period and on such conditions as he thinks fit.

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Special provisions regarding spirits manufactured by agricultural distiller.

32. (1) The manufacture of spirits by an agricultural distiller shall be subject to such supervision by an officer as the Commissioner may in each case consider necessary. (2) An allowance may be made for natural waste and evaporation on all spirits of his own distillation stored by an agricultural distiller on his farm to the extent specified in Schedule No. 6 if the Commissioner is satisfied that no part of the loss was wilfully or negligently caused. (3) No agricultural distiller shall use his still for distilling spirits from any material other than produce grown on the farm of which he is the owner or occupier and which is of a kind prescribed by regulation in respect of the class of agricultural distiller to which he belongs. (4) Subject to this Act and any other law relating to liquor, section 18(6) shall mutatis mutandis apply in respect of spirits manufactured from grapes by any class of agricultural distiller specified by the Minister by regulation, and for that purpose a reference in section 18(6) to a duty warehouse shall be deemed to be a reference to the farm on which spirits are manufactured. (5) Spirits manufactured by an agricultural distiller from any prescribed fruits other than grapes shall be solely for his private use on the farm where such fruit was produced and such spirits were manufactured. (6) Notwithstanding subsection (5), the Commissioner may allow spirits so manufactured to be used or disposed of in such circumstances and at such places as he may deem fit and subject to such conditions as he may impose in each case. (Added A.5/1991.)

Special provisions regarding wine.

33. (1) The Commissioner may, subject to such conditions as he may impose in each case, license the premises of a wine grower, wine growers’ co-operative agricultural society, or a person who holds a License under any law to deal in wine in wholesale quantities, as a special duty warehouse for the purpose of manufacturing wine. (2) Special warehouses licensed under this subsection shall, for the purposes of this Part, be deemed to be duty manufacturing warehouses. (3) Where wine is manufactured in a duty warehouse the Minister may by regulation prescribe a fixed allowance in respect of working and processing losses and losses due to natural causes which shall be granted in lieu of the allowance in respect of those losses under section 18(8).

Special provisions regarding beer.

34. (1) If the relative density before fermentation of any worts to be used in the manufacture of beer in Swaziland in the collecting or fermenting vessels in a duty manufacturing warehouse exceeds by more than two per cent the relative density which should, according to the manufacturing records of the manufacturer be the relative density of such worts, such manufacturer shall be guilty of an offence. (Amended A.5/1991.) (2) Bates’ saccharometer and tables shall be used to ascertain the relative density of worts, and 1º of relative density shall be taken to be equal to one thousandth part of the relative density of distilled water at 15,6º Celsius. (Amended A.5/1991.) (3) When fermentation has commenced in any worts so that the original relative density cannot be ascertained by the prescribed saccharometer, such relative density shall be determined in accordance with any regulations. (Amended A.5/1991.) (4) A manufacturer shall, in respect of beer manufactured by him in Swaziland, register with the Commissioner the name under which such beer will be sold or disposed of for home consumption together with the number of the sub-item of tariff item 104.10 of Part 2 of Schedule No. 1 which will apply in respect of beer so sold or disposed of under every such name, and no beer shall be sold or disposed of except under a name so registered. (Amended A.7/1981.) (5) No beer shall be sold or disposed of by any manufacturer for home consumption except in a container which indicates the name of such beer, and any invoice or other document relating to such sale or disposal of such beer shall indicate its name. (Amended A.7/1981.)

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(6) Any description on any container of beer bearing an indication of a name registered with the Commissioner shall be deemed to be a declaration for the purpose of assessment of duty. (7) The Commissioner may exempt beer of any class or kind from any provision of subsections (4) and (5). (8) If the relative density before fermentation of any beer in any container bearing an indication of a name registered with the Commissioner under this section is ascertained to be higher or lower than the relative density before fermentation specified in the sub item of tariff item 104.10 so registered in relation to beer of such name, the manufacturer is liable for duty on the full quantity of the brew or blend of brews of beer from which such container was filled, at the rate of duty applicable to beer of the same relative density before fermentation as that ascertained in respect of the contents of such container or to beer of the same relative density before fermentation as that registered in relation to the name on such container, whichever is the higher rate of duty. (Amended A.5/1991.) (9) If the Commissioner is unable to establish the full quantity from the records of the manufacturer, he may determine a quantity which shall be deemed to be such full quantity. (10) Any beer of any brew or blend of brews of beer referred to in subsection (9) and not delivered from the stocks of such manufacturer shall be liable to forfeiture.

Special provisions in respect of manufacture of sales duty goods or goods specified in Section B of Part 2 of Schedule No. 1 and collection of sales duty or excise duty specified in Section B of Part 2 of Schedule No. 1.

35. (1) Every manufacturer of sales duty goods or excisable goods specified in Section B of Part 2 of Schedule No. 1, every owner of sales duty goods or excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured for him partly or wholly from materials owned by such owner, and every dealer of a class designated by the Commissioner, in pearls, precious and semi-precious stones, precious metals, metals clad with precious metals or articles containing or manufactured of such pearls, precious and semi-precious stones, precious metals or metals clad with precious metals (excluding imitation jewellery), shall License his premises as a special duty warehouse for sales duty purposes or for purposes of excise duty specified in Section B of Part 2 of Schedule No. 1 in terms of this Act. (Amended A.5/1991.) (2) A manufacturer, owner or dealer referred to in subsection (1) shall not manufacture or deal in or with sales duty goods or excisable good specified in Section B of Part 2 of Schedule No. 1 unless he has Licensed his premises as specified in the said subsection: Provided that the Commissioner may to the extent he deems fit, and on conditions he may impose, exempt any manufacturer or owner from the requirements of this Act. (Amended A.5/1991.) (3) Notwithstanding anything to the contrary in this Act — (a) where the value added by any process in the manufacture of sales duty goods or excisable good specified in Section B of Part 2 of Schedule No. 1 is, in the opinion of the Commissioner, low in relation to the manufacture selling price of such goods, or where any process in the manufacture of sales duty goods or excisable goods specified in Section B of Part 2 of the said Schedule presents in his opinion exceptional difficulties in the collection of sales duty or excise duty specified in Section B of Part 2 of the said Schedule in respect of such goods, the provisions of subsections (1) and (2) shall apply, and due entry of such goods shall be effected at such stage in the manufacture of the said goods as he may determine, and the processes which shall be deemed to be included for the purposes of calculating the value for sales duty purposes or for purposes of excise duty specified in Section B of Part 2 of the said Schedule of such goods shall be as determined by him; (b) the Commissioner may, subject to such conditions as he may impose — (i) where the production and disposal of any sales duty goods or excisable goods specified in Section B of Part 2 of Schedule No. 1 are performed by different persons, or under circumstances rendering it expedient in his opinion to do so, issue one License under this Act in respect of the premises of two or more persons concerned, and thereupon each such person shall be jointly and severally liable for the sales duty or excise duty specified in Section B of Part 2 of the said Schedule on all the sales duty goods or excisable goods specified in Section B of Part 2 of the said Schedule anyone paying, the other or others to be absolved pro tanto;

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(ii) include in a special duty warehouse License issued under this Act in respect of the premises of any manufacturer of sales duty goods or excisable goods specified in Section B of Part 2 of Schedule No. 1, any warehouse, depot, agency, branch or other storage place approved by the Commissioner and in which any such goods owned by such manufacturer are stored, and thereupon such goods shall, for the purposes of Act, be deemed to be in the Licensed special duty warehouse of such manufacturer, and the licensee concerned shall be liable for compliance with the requirements of this Act including liability for the sales duty or excise duty specified in Section B of Part 2 of the said Schedule on such goods so stored; (iii) and in such circumstances as he may deem expedient, license the premises of any dealer in sales duty goods or excisable goods specified in Section B of Part 2 of Schedule No. 1 as a special duty warehouse under the provisions of this Act, and thereupon such dealer shall comply with the requirements of this Act relating to the collection of sales duty or excise duty specified in Section B of Part 2 of the said Schedule on such sales duty goods or excisable goods specified in Section B of Part 2 of the said Schedule as the Commissioner may determine, and such dealer shall be liable for the sales duty or excise duty specified in Section B of Part 2 of the said Schedule on such goods; and (iv) make such temporary or permanent adjustment to the sales duty value of any sales duty goods or excise duty value of excisable goods specified in Section B of Part 2 of Schedule No. 1 as he may deem reasonable in circumstances which are in his opinion exceptional. (4) Sales duty goods or excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured in Swaziland by a natural person for his own use and not for sale or disposal and in circumstances which in the opinion of the Commissioner do not constitute a business venture, may, subject to such conditions as he may impose be exempted from payment of sales duty or excise duty specified in Section B or Part 2 of the said Schedule. (5) Sales duty goods or excisable goods specified in Section B of Part 2 of Schedule No. 1 manufactured in Swaziland by any other person, or any class or kind of such goods, may, subject to such conditions as the Minister may impose, be exempted by the Commissioner from the payment of sales duty or excise duty specified in Section B of Part 2 of the said Schedule if— (a) the average value for sales duty purposes or for purposes of excise duty specified in Section B of Part 2 of the said Schedule of such goods or such class or kind of goods has during such period as the Minister may determine, not exceeded a certain amount determined by the Minister; or (b) the value for sales duty purposes or for purposes of excise duty specified in Section B of Part 2 of the said Schedule of such goods or such class or kind of goods is in the opinion of the Commissioner not likely to exceed the amount referred to in paragraph (a) during one calendar year; or (c) such circumstances as the Commissioner may specify apply. (Amended A.11/1988.)

Duties applicable to goods manufactured in a duty warehouse.

36. (1) For the purposes of this section “importer” or “manufacturer” includes any person who, by virtue of an agreement with a person who imports or manufactures mineral oil products, undertakes the distribution or sale in Swaziland in wholesale quantities of mineral oil products imported or manufactured by the importer or manufacturer. (2) In respect of any goods manufactured in a duty warehouse there shall be paid, subject to section 75, on their entry for home consumption duty at the under-mentioned rates — (a) if the manufactured goods are not liable to excise duty, the fiscal and customs rates of duty applicab1e in terms of Schedules Nos. 1 and 2 on any imported goods used in the manufacture of such manufactured goods and the excise rate of duty applicable in terms of Schedule No. 1 on any excisable goods used in the manufacture of such manufactured goods; and (Amended K.O-I-C. 17/1976.) (b) if such manufactured goods are liable to excise duty, the excise rate of duty applicable in terms of Schedule No. 1 on such manufactured goods.

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(3) Notwithstanding subsection (2), but subject to subsections (5), (6), (7), (8) and (9), the Commissioner may, on such conditions as he may impose, for the purpose of preserving any goods in a duty storage warehouse or reconditioning such goods which have, as a result of contamination or deterioration or for any other reason, become unsaleable or not readily saleable or for the purpose of fulfilling special orders, permit such goods to be reconditioned or mixed or blended in such warehouse with other goods, and in that event duty shall be paid, in lieu of the duties prescribed in subsection (2), according to the first account taken of any such goods or the total quantity of such reconditioned, mixed, or blended goods, whichever quantity is the greater, as follows— (Amended A.5/1991.) (a) if such reconditioned, mixed or blended goods are not liable to excise duty, at the fiscal and customs rates of duty applicable in terms of Schedules Nos. 1 and 2, on any imported goods contained in such reconditioned, mixed or blended goods, and at the excise rate of duty applicable in terms of Schedule No. 1 on any excisable goods contained in such reconditioned, mixed or blended goods; and (Amended K.O-I-C. 17/1976.) (b) if such reconditioned, mixed or blended goods are liable to excise duty, at the excise rate of duty applicable in terms of Schedule No. 1 on the total quantity of such reconditioned, mixed or blended goods and in addition duty in an amount equal to the amount by which the customs duty at the rate applicable in terms of Schedules Nos. 1 and 2 on any imported goods contained in such reconditioned, mixed or blended goods, exceeds the excise duty at the rate applicable in terms of this paragraph on such proportion of such reconditioned, mixed or blended goods as is represented by such imported goods contained therein: Provided that such reconditioned, mixed or blended goods shall in either case qualify for any rebate of duty specified in respect of such goods in any applicable item of Schedule No. 3, 4 or 6. (Amended A.5/1991.) (4) If the Commissioner has permitted any goods to be reconditioned or to be mixed or blended in a storage warehouse with other goods, such warehouse shall, without being licensed as a duty manufacturing warehouse and without approval of its premises or plant thereon, be regarded for the purposes of this Act as a licensed duty manufacturing warehouse: Provided that no rebate for any loss or deficiency in respect of petrol and distillate fuel so reconditioned, mixed or blended exceeding the rebate specified in section 75(19)(e) and (f) shall be allowed on such goods. (Added A.5/1991.) (5) Notwithstanding anything to the contrary in this Part, the Commissioner may, on such conditions as he may impose, and in such circumstances and at such places as he may specify, permit the mixing or blending of any mineral oil products with one another or with other goods whether or not such products or goods are in a duty storage warehouse or have passed out of customs and excise control for any purpose, including that of rendering such goods saleable or more readily saleable or of fulfilling special orders. (Amended A.5/1991.) (6) Subsection (3) insofar as it relates to the duty payable and the rebate of duty shall mutatis mutandis apply in respect of mineral oil products mixed or blended under this subsection. (7) Any duty paid in respect of any goods so used for mixing or blending shall be deemed to have been paid in respect of any duty payable in accordance with subsection (6) in respect of the mineral oil products obtained by such mixing or blending. (8) This section shall not be construed as authorizing a refund of any amount by which any duty already paid or assessed in respect of any goods so used for mixing or blending exceeds the duty payable under this subsection. (9) Any mineral oil product used in mixing or blending shall be deemed to consist entirely of imported goods unless it is proved to the satisfaction of the Commissioner that it consists entirely of excisable goods or it is proved to his satisfaction that it contains such a small proportion of imported goods that he considers it negligible, in which event such mineral oil product shall be deemed to consist entirely of excisable goods. (10) If the Commissioner is satisfied that any goods to which this Act relates have become mixed by an act or omission which by the exercise of reasonable care could not have been avoided, he may apply the provisions of subsection (3), in so far as that subsection relates to the duty payable and any rebate of duty, as if such goods were mixed in a customs and excise storage warehouse with his permission. (Amended A.7/1981.)

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(11) Notwithstanding this Act the Commissioner may, subject to such conditions as he may in each case impose, regard the mixing of mineral oil products of different classes or kinds as a result of transport by pipeline, except a pipeline used in connexion with the loading or discharge of vehicles, or the mixing of imported and locally manufactured mineral oil produce of the same class or kind in the ordinary course of transport or storage or distribution in Swaziland as not constituting manufacture of a new product, provided the quantities of the constituent products entered before they became so mixed are separately accounted for to his satisfaction. (12) There shall be paid on entry for home consumption, in addition to any duty payable in terms of this section and subject to the provisions of sections 25(5) and 75, sales duty or surcharge at the rate applicable in terms of Schedule No. 1 on any sales duty goods used or incorporated in the manufacture, reconditioning, mixing or blending of any goods to which this section relates and on any such manufactured, reconditioned, mixed or blended goods which are liable to sales duty or surcharge in terms of the aforementioned Schedule. (Amended A.5/1991.)

PART V

CLEARANCE AND ORIGIN OF GOODS — LIABILITY FOR AND PAYMENT OF DUTIES

Entry of goods and time of entry.

37. (1) Every importer of goods shall within seven days of the date on which such goods are, in terms of section 9, deemed to have been imported or within such further time as the Commissioner may allow, make due entry of those goods, in the form prescribed, and declare to the truth of such entry: (Amended A.5/1991.) Provided that, with the permission of the controller the following goods need not be so entered, namely: (i) containers temporarily imported; (ii) human remains; (iii) goods which, in the opinion of the secretary, are of no commercial value; (iv) goods imported under international carnet; and (v) goods of a value for duty purposes not exceeding two hundred emalangeni and on which no duty is payable ion terms of Schedule No. 1. (Added A.10/1978; amended A.5/1991.) (2) The controller at any place appointed under this Act for the entry of goods shall accept entries for goods in respect of which it is proved to his satisfaction that such goods have been loaded on a vehicle for discharge at that place, notwithstanding the fact that such vehicle has not yet arrived at that place. (3) Every such importer shall within seven days of the granting of a delivery order by the controller in respect of any goods entered under subsection (1) or, where such goods arrive after the granting of the order, within seven days of the arrival of the goods, present such delivery order to the authority in possession of such goods for delivery thereof. (4) (a) An exporter of any goods shall, before such goods are exported from Swaziland, deliver to the Controller a bill of entry in the prescribed form: But the Commissioner may — (i) if no export duty is payable on and no obligation or condition is to be fulfilled or complied with under any law in respect of such goods; or (ii) in the case of goods to be exported overland by means of a vehicle (excluding an aircraft and a railway train) which are loaded for export at a place other than a place appointed under section 5, where goods may be entered for customs and excise purposes, allow such a bill of entry to be delivered at such time as he deems reasonable. (b) For the purpose of paragraph (a), in respect to the delivery of a bill of entry, the goods referred to therein shall be deemed to have been exported from Swaziland — (i) in the case of goods to be exported by container, at the time when such goods are delivered to the depot operator or container operator, as the case may be; (Amended A.5/1991.) 387

(ii) in the case of goods to be exported in an aircraft, at the time when such goods are delivered to the pilot of the aircraft or are brought within the control area of the airport authority concerned, as the case may be; (iii) in the case of goods to be exported in a railway train, at the time when such goods are delivered to the railway operator; or (iv) in the case of goods to be exported overland in a vehicle other than an aircraft or a railway train, subject to paragraph (a), at the time when such goods are loaded on the vehicle. (Amended A.11/1988.) (5) The Minister may by regulation permit any excisable goods, sales duty goods and any class or kind of imported goods which he may specify in such regulation to be removed from a duty warehouse on the owner of such goods issuing a prescribed certificate or an invoice or other document prescribed or approved by the Commissioner, and the payment of duty on such goods at a time and in a manner specified by regulation, and such certificate, invoice or other document shall, for the purposes of section 18(6) and subject to section 38(7) and (8), be deemed to be a due entry from the time of removal of those goods from such warehouse. (6) No such goods may be removed from a duty warehouse or appropriated for use by the owner prior to or without the issuing of such certificate, invoice or other document.

Importer and exporter to produce documents and pay duties.

38. (1) The person entering any imported goods for any purpose in terms of this Act shall deliver to the Controller a bill of entry in the prescribed form, setting forth the full particulars as indicated on the form and as required by the Controller, and according to the purpose (to be specified on such bill of entry) for which the goods are being entered, and shall make and subscribe to a declaration in the prescribed form, as to the correctness of the particulars and purposes shown on such bill of entry. (Amended A.7/1981.) (2) At the same time, such person shall deliver such duplicates of the bill of entry as may be prescribed or as may be required by the controller and shall pay all duties due on such goods: Provided that the Commissioner may, on such conditions, including conditions relating to security, as he may determine, allow the deferment of payment of duties due in respect of such bills of entry and for such periods as he may specify. (Added A.5/1991.) (3) The said person shall further produce the transport document or such other document in lieu thereof as may be approved by the Commissioner, invoices as prescribed, shipper’s statement of expenses incurred by him, copy of the confirmation of sale or other contract of purchase and sale, importer’s written clearing instructions and such other documents relating to such goods as the Controller may require in each case and answer all such questions relating to such goods as may be put to him by the Controller, and furnish in such manner as the Commissioner may determine such information regarding the tariff classification of such goods as the Commissioner may require. (Amended A.4/1979; A.7/1981.) (3bis) The Commissioner may, subject to such conditions as he may determine, allow the said person to produce in lieu of any document required to be produced under subsection (3), a document purporting to be a copy of any such document and obtained by means of microfilming or any other process, and which shall, subject to compliance with such conditions, for all purposes have all the effects of the original document concerned. (Added A.7/1981.) (4) Such person shall also in respect of such class or kind of goods as may be specified by the Commissioner by rule or any goods to which circumstances so specified apply, produce to the controller for retention by him such sample as may be so specified and a true copy of any invoice or other document relating to such goods or of any blueprint, illustration, drawing, plan or illustrated and descriptive literature so specified in respect of or relating to such goods. (5) If goods intended for export are liable to any export duty under this Act, the amount thereof shall be stated in the bill of entry relating to such goods and shall be payable upon presentation of such entry to the controller. (6) No such bill of entry shall be valid, nor shall any person export such goods, until duty has been paid to the controller. (7) Any person who removes goods from a duty warehouse by means of the issuing of a certificate, invoice or other document referred to in section 37(5) shall present to the Commissioner a validating bill of entry in the prescribed form at 388 the time and in the manner specified by regulation in respect of any such certificate, invoice or other document and shall pay the duty due on the goods to which such certificate, invoice or other document relates, to the Commissioner at the prescribed time. (8) Such person shall present to the controller such validating bill of entry setting forth the full particulars indicated thereon and the declaration shall be duly signed by the prescribed person and there shall be as many duplicates and such supporting documents as may be prescribed or as may be required by the controller. (8bis) The Commissioner may specify the documents to be produced by the exporter upon entry for exportation in respect of any goods exported or any class or kind of goods exported or any goods exported in circumstances or to a destination specified by him. (Added A.5/1991.) (9) The Commissioner may by rule specify the manner in which bills of entry for goods of any such class or kind as may be specified in such rule, or goods imported or exported in such manner or such circumstances as may be so specified, shall be delivered.

Sale in transit.

38bis. Notwithstanding anything to the contrary in this Act, the importer of any goods purchased from any Customs Union consignee after shipment of such goods but before the date of entry thereof, shall produce to the Controller the invoice relating to such purchase, and the price actually paid or payable for such goods by virtue of such purchase shall for the purposes of section 65(1) be the transaction value of such goods. (Added A.11/1988.)

Validity of entries.

39. (1) No entry shall be valid unless — (a) in the case of imported or exported goods, the description and particulars of the goods and the marks and particulars of the packages declared in that entry correspond with the description and particulars of the goods and marks and particulars of the packages as reported in terms of section 6 or 11 or in any certificate, permit or other document by which the import or export of those goods is authorized; (b) the goods have been properly described in the entry by the denomination and with the characters, tariff headings and item numbers and circumstances according to which they are charged with duty or are admitted under this Act or are permitted to be imported or exported; (c) the true value of the goods on which duty is leviable or which is required to be declared under this Act and the true territory of origin, territory of export and means of carriage have been declared; (d) in the case of goods purchased by or sold, consigned or disposed of to any person, a correct and sufficient invoice thereof, as prescribed, has been produced to the Controller; and (Amended A.4/1979.) (e) the correct duty due has been paid: Provided that no bill of entry shall be invalid by reason of any deferment referred to in the proviso to section 38(2). (Added A.5/1991) (2) Goods taken or delivered or removed by virtue of an entry which is not valid out of any ship, aircraft, vehicle, transit shed, container terminal, container depot, customs and excise warehouse or other place where they have been deposited with the sanction of the controller, shall be deemed to be goods landed or taken without due entry thereof: (Amended A.10/1978.) Provided that if such goods are included in any entry embracing more than one package, and it is shown that the invalidity arose without wilful default or negligence of anyone connected with the goods, and that such invalidity does not exist as to all the packages in that entry, then only the package not validly entered shall be deemed to have been landed or taken without due entry. (3) Subject to the provisions of sections 76 and 77 and on such conditions as the Commissioner may impose and on payment of such fees as the Minister may prescribe — (i) an importer or exporter or manufacturer of good shall on discovering that a bill of entry presented by him does not comply in every respect with section 38, or is invalid in terms of subsection (1), forthwith adjust

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that bill of entry by means of a voucher of correction or in such other manner as the Commissioner may prescribe; or (ii) if a bill of entry has been passed in error by reason of duty having been paid on goods intended for storage or manufacture in a customs and excise warehouse under section 18 or for purposes or use under rebate of duty under section 75, the Commissioner may allow the importer, exporter or manufacturer to adjust that bill of entry by substitution of a fresh bill of entry and cancellation of the original bill of entry, provided such goods, where a rebate of duty is being claimed, qualified in all respects at the time the duty was paid for that rebate: Provided that acceptance of such voucher or fresh bill of entry shall not indemnify such importer or exporter or manufacturer against any fine or penalty provided for in this Act. (Amended A.2/1985; A.11/1988.) (4) The provisions of subsection (3)(ii) shall apply mutatis mutandis in respect of a bill of entry in which goods have according to the tariff heading, tariff sub-heading, item or circumstances according to which such goods are charged with duty, been described in error as goods, other than goods intended for — (a) storage or manufacture in a customs and excise warehouse under section 18; or (b) purposes or use under rebate of duty under section 75, in consequence of the fact that — (i) a determination of any such tariff heading, sub-heading or item is, under section 46(12)(d), amended with retrospective effect as from a date before or on the date on which the goods described in such bill of entry have been entered for home consumption; or (ii) any such determination is, under section 46(12)(d), withdrawn with such retrospective effect, and a new determination is thereunder made with effect from such withdrawal; or (iii) any Schedule is amended with such retrospective effect, and in which such goods, if such amendment or new determination had been in operation on the date on which such goods were so entered, would have been described as goods intended for the said storage or manufacture or the said purposes or use. (Amended A.10/1978; A.11/1988.) (5) No application for any substitution under subsection (3)(ii) or in that subsection as read with subsection (4) shall be considered by the Commissioner unless it is received by the Controller, supported by the necessary document and other evidence to prove that such substitution is justified, within a period of six months — (Amended A.5/1991.) (a) from the date of entry for home consumption as provided in section 44(2), of the goods to which the application relates; or (Amended A.5/1991.) (b) in the case of any amendment of a determination referred to in subsection (4)(b)(i) or a new determination referred to in subsection (4)(b)(ii), from the date on which such amendment is effected or such new determination is made or, if such amendment or new determination is published by notice in the Gazette, the date on which such amendment or new determination is so published; or (c) in the case of an amendment referred to in subsection (4)(b)(iii), from the date on which such amendment is published by notice in the Gazette. (Added A.11/1988; amended A.5/1991.)

Particulars on invoices.

40. (1) The exporter of any goods imported into or exported from Swaziland or the owner of any excisable goods or sales duty goods manufactured in any customs and excise warehouse shall render a true, correct and sufficient invoice, certificate of value and certificate of origin of such goods in such form and declaring such particulars of such goods as may be prescribed in the regulations and as may be necessary to make a valid entry of such goods and shall furnish such additional information in connection with such invoice, certificate, particulars or goods as the Commissioner may, for the purposes of this Act, require at any time: Provided that different requirements may be prescribed in the regulations in respect of invoices and certificates relating to goods of different classes or kinds or goods to which different circumstances specified in any regulations apply.

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(2) Every exporter or manufacturer shall allocate to any goods of a class or kind specified in the regulations for the purposes of this subsection and exported to or from or manufactured in Swaziland after a date specified by the Minister by notice in the Gazette, a distinctive and permanent identification number, code, description, character or other mark in such manner and in accordance with such method as may be prescribed in the regulations and from the day immediately after such date, such number, code, description, character or other mark shall be quoted or reproduced in all prescribed invoices relating to such goods and in all such other documents relating to such goods as may be specified in the regulations. (3) All particulars in any prescribed invoice and certificate in respect of imported goods shall relate to the goods in the condition in which they are imported into Swaziland and for the purposes of section 106(2) no change in such conditions shall be deemed to have taken place between the time of importation and the time of any examination or analysis decided upon by the Controller or the Commissioner unless the importer is able to satisfy the Commissioner of any such change and the extent thereof: Provided that the Commissioner may in his discretion refuse to act upon the result of any such examination or analysis if the particulars in such invoices are thereby proved to be incorrect. (4) (a) All particulars necessary to make a valid entry and all particulars in respect of the transaction value or of any commission, discount, cost, charge, expense, royalty, freight, duty, tax, drawback, refund, rebate, remission or other information whatever which relates to and has a bearing on such value shall be declared by the exporter in any prescribed invoice in respect of any imported goods and such particulars shall, except where the Commissioner otherwise determines, relate to the final amount of such transaction value or commission, discount, cost, charge, expense, royalty, freight, duty, tax, drawback, refund, rebate or remission and to the final particulars or information regarding such goods. (Amended A.2/1985.) (b) Any particulars referred to in paragraph (a) and declared in any prescribed invoice or certificate in respect of any imported goods shall be subject to any credit or debit note passed by the exporter or to any refund made or becoming due by the exporter or any amount paid or becoming due to the exporter (directly or indirectly, in money or in kind or in any other manner) or to any change of any nature whatever in such particulars in respect of such goods after the date of issue of such invoice or certificate and the exporter shall whenever any such note is passed, or refund is made or becomes due or amount is paid or becomes due or change takes place, forthwith issue an amended invoice or certificate to the importer who shall produce such amended invoice or certificate to the Controller within one month of receipt thereof and report the circumstances to him. (c) If any particulars referred to in paragraph (a) of any imported goods are not declared in the prescribed invoice or certificate in respect thereof, or if any change in the particulars declared in any prescribed invoice or certificate relating to any imported goods which occurs after the date of issue of any such invoice or certificate is not forthwith reported to the Controller by the importer of such goods or if the Commissioner has reason to believe that an offence referred to in section 86(f) or (g) has been committed in respect of any imported goods the Commissioner may determine a transaction value, origin, date of purchase, quantity, description or the characteristics of such goods according to the best information available to him, which shall, subject to a right of appeal to the Minister, be deemed to be the transaction value, origin, date of purchase, quantity, description or the characteristics of such goods. (Amended A.2/1985.) (d) The right of appeal referred to in paragraph (c) of this subsection shall be exercised within a period of three months from the date of the determination concerned. (Amended A.4/1979; A.2/1985.)

Entry by bill of sight.

41. (1) If any importer makes and subscribes to a declaration that he cannot for want of full information make due entry of any goods, the controller may accept an entry by bill of sight for those goods by the best description which can be given, and may grant a warrant in respect thereof so that they may be landed and brought to a place indicated by the controller at the risk and expense of the importer for the purpose of being seen and examined by him there in the presence of the controller. (2) The importer shall make due entry of such goods within three days of the date on which they were brought to the place of examination which shall be regarded as a special Government warehouse for the purpose of securing the duties thereon until such goods are duly entered and removed or delivered in accordance with this Act.

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(3) In default of due entry the goods may after three months from the date of receipt thereof at the place of examination he disposed of in the manner described in section 42. (4) No goods entered by bill of sight under this section shall be removed without due entry after sight and the penalties prescribed in this Act in respect of the incorrect or false entry of goods shall also be applicable in respect of such due entry after sight.

Disposal of goods on failure to make due entry.

42. (1) If entry of any imported goods has not been made under section 37 the controller may, on expiry of the period prescribed in subsection (1) thereof require the person who brought such goods into Swaziland to remove them to the Government warehouse or other place indicated by the controller or may himself so remove them. (2) (a) The Commissioner may at any time after the expiry of such prescribed period call upon the importer to make due entry of the goods within a time specified and if the importer fails to do so the goods shall be liable to forfeiture. (b) If such goods are seized under section 88(1) and sold in terms of section 90 the proceeds thereof shall be disposed of as provided in such section (3). (Amended A.2/1985.) (3) If after the expiry of three months from the date of removal to the Government warehouse or other place indicated by the controller or, where no removal has taken place, from the date of expiry of the period prescribed in section 37(1), any goods remain unentered, the secretary may cause them to be sold, and, if so sold, the proceeds thereof shall be applied in discharge of any duty, expenses incurred by the department, charges due to the department, charges due to the Swaziland Railway Board, charges due to the freight, and the surplus, if any, shall upon application be paid to the owner of such goods, unless the secretary is satisfied that such goods were imported in contravention of any law: (Amended A.10/1978.) Provided that — (a) if the goods cannot be sold for a sum sufficient to cover such duty, expenses, charges and freight, the Commissioner may accept the sum offered and apply it in discharge of such debits in the order mentioned or direct that such goods be destroyed or appropriated to the Government; or (b) if the goods cannot be sold at a price regarded by the Commissioner as reasonable, they may in his discretion be appropriated to the Government; and (c) no payment of surplus in respect of goods sold shall be made to the owner of the goods unless the application for such payment is supported by proof of ownership of the goods and is received by the Commissioner within two years from the date of sale of the goods. (4) Notwithstanding this Act if any goods — (a) referred to in subsection (3) are of a perishable or dangerous nature or if the Commissioner considers that unless the goods are sold at once the proceeds would not be sufficient to cover the duties and charges due or charges which may become due in respect of such goods, he may forthwith direct their sale and apply the proceeds as provided in subsection (3); or (b) are sold in terms of this section subject to compliance by the purchaser with any condition, and the purchaser fails to comply with such condition within a period of three months from the date of sale thereof, such sale shall be null and void and the nett proceeds thereof may be refunded to the purchaser and the Commissioner may direct that the goods be destroyed or appropriated to the Government or be dealt with in such manner as he may deem fit.

Liability for duty.

43. (1) Liability for duty on any goods to which section 9 relates shall commence from the time when such goods are in terms of that section deemed to have been imported into Swaziland: Provided that, subject to subsection (7), any such liability shall cease if it is proved to the satisfaction of the Commissioner that such goods (excluding, save insofar as any regulation otherwise provides, goods which are missing from

392 an individual package and in respect of which customs duty or sales duty, each taken separately, does not exceed twenty- five rand) were not landed at any place in Swaziland. (2) Any excisable goods or sales duty goods shall, for the purposes of this Act, be deemed to have been manufactured at that stage in the manufacturing process when such goods have acquired the essential characteristics of and are in the opinion of the Commissioner capable of use as excisable goods or sales duty goods, and liability for duty shall commence at such stage. (3) The pilot of an aircraft or the carrier of goods by means of any other vehicle shall be liable for the duty on all goods which are removed from such aircraft or vehicle at a place in Swaziland to which they are not consigned, and such liability shall continue until such goods have been duly entered or otherwise accounted for to the satisfaction of the Commissioner. (4) The pilot or carrier concerned shall be liable for the duty on all goods deemed in terms of section 9 to have been imported, except goods in respect of which an air consignment note or other document was issued on loading of such goods onto the aircraft or vehicle by means of which they were imported stating that the said goods were accepted for conveyance at the risk of the owner thereof in all respects and not only as regards risk in respect of damage to such goods, provided such goods have not been landed and placed in a transit shed appointed or prescribed under section 5(1). (Amended A.7/1981.) (5) The liability of the pilot or other carrier for duty in terms of subsection (4) shall cease — (a) upon lawful delivery of the goods to the importer or his agent after due entry thereof has been made; or (b) if due entry of the goods has not been made, upon delivery thereof to the Government warehouse or other place indicated for the purposes of this section by the controller; or (c) in respect of such goods which are containerized upon delivery thereof to a container operator; or (Added A.10/1978.) (d) in respect of such goods for which an air cargo transfer manifest hs been completed, upon delivery to the airline. (Added A.10/1978.) (5bis) The liability of a container operator for duty in terms of subsection (6)(a) shall cease — (a) in respect of goods containerised, upon lawful delivery thereof, after due entry thereof has been made, to the importer or his agent; or (b) in respect of goods containerized in — (i) L.C.L. containers; and (ii) other containers delivered to a container operator as contemplated in subsedtion (5)(c) and specified in a list to be compiled by the container operator concerned, upon delivery thereof to a depot operator; (Added A.10/1978; amended A.11/1988.) (5ter) The liability of a depot operator for duty in terms of subsection (6)(b) shall cease — (a) in respect of goods containerised in L.C.L. containers and the other containers referred to in subsection (5bis)(b)(ii), upon lawful delivery thereof, after due entry thereof has been made to the importer or his agent; or (Amended A.11/1988.) (b) in respect of any goods of which due entry has not been made, upon delivery thereof to the Government warehouse or other place indicated for the purposes of this section by the controller. (Added A.10/1978.) (6) In all cases where the pilot or other carrier is not liable for the duty on any imported goods or where the liability of the said pilot or other carrier has ceased in respect of such goods in terms of this section, liability for duty thereon shall, subject to Part VII, rest — (a) in the case contemplated in subsection (5)(c), on the container operator concerned; (b) in the case contemplated in subsection (5bis)(b), on the depot operator concerned; (c) in any other case on the importer or owner of such goods. (Amended A.10/1978.)

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(7) If the pilot or other carrier is not liable for the duty on any imported goods or if, in terms of this section, his liability has ceased in respect of such goods, liability for duty thereon shall subject to Part VII, rest on the importer or the owner of such goods. (8) Notwithstanding this section, no importer shall be granted a refund of customs duty or sales duty paid in respect goods missing from any individual imported package, if any such customs duty or sales duty, each taken separately, does not exceed twenty-five rand. (9) The manufacturer, owner, seller or purchaser of any excisable goods or sales duty goods shall, subject to the provisions of Part VII, be liable for the duty on such goods and his liability shall continue until such goods have been duly entered and the duty due thereon paid. (Amended A.1/1981; A.11/1988) (9bis) Notwithstanding any provision to the contrary in this Act, any person who owns, purchases, removes, receives, takes, delivers or deals with or in any imported or excisable goods which should have been duly entered, in terms of any agreement for home consumption in any territory, under section 51 with a government of whom such an agreement has been concluded, shall be liable for the duty on such goods brought into Swaziland from such territory, and if the question arises whether such goods have been duly entered for home consumption it shall be presumed, unless the contrary is proved, that such goods have not been so entered, and such goods shall be subject to the provisions of this Act as if they were goods which have, contrary to the provisions of section 46bis(1) not been duly entered for home consumption in Swaziland. (Added A.11/1988.) (10) Any duty for which any person is liable in terms of this section shall on demand by the Commissioner become payable.

Joint and several liability for duty or certain amounts.

43bis. Subject to the provisions of sections 35(3)(b)(i) and 99(2)(b), whenever in terms of this Act liability for duty or any amount demanded under section 88(2)(a) devolves on two or more persons, each person shall, unless he satisfies the Commissioner that his relevant liability has ceased in terms of this Act, be jointly and severally liable for such duty or amount, any one paying, the other or others to be absolved pro tanto. (Added A.5/1991.)

Determination of duty applicable.

44. (1) (a) Notwithstanding anything to the contrary contained in this Act, all goods consigned to or imported into Swaziland or stored or manufactured in a customs and excise warehouse or removed in bond shall upon being entered for home consumption be liable to such duties (including anti-dumping and countervailing duties specified in Schedule No. 2 and new or increased duties referred to in section 58(2) and duties imposed under section 53) as may at the time of such entry be leviable upon such goods. (b) Notwithstanding paragraph (a) and subject to section 39, any goods imported into or manufactured in Swaziland, which are liable to duty and which were removed, taken or delivered without entry for home consumption having been made in respect of such goods, shall be liable to such duties as may be leviable upon such goods at the time of such removal, taking delivery or at the time of assessment by an officer, whichever yields the greater amount of duty. (Amended A.11/1988.) (2) For the purposes of this section, the time of entry for home consumption of — (i) goods imported by post (and not entered at a custom and excise office) shall be deemed to be the time when such goods are assessed for duty; and (ii) goods imported otherwise shall be deemed to be the time when the bill of entry concerned is delivered to the Controller in terms of section 38(1) and at a place indicated by the Controller, irrespective of whether the bill of entry is returned to the Controller in order to be adjusted as required by the Controller, provided it is redelivered, so adjusted, to the Controller within five days after the day on which it was so returned to the Controller. (Amended A.2/1985.)

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Origin of goods.

45. (1) For the purposes of this Act, excluding Parts VI and IX, goods shall not be regarded as having been produced or manufactured in any particular territory unless — (a) at least twenty-five per cent (or such other percentage as may be determined under subsections (2), (3) or (4) ) of the production cost of such goods, determined in accordance with any regulation, is represented by materials produced and labour performed in such territory; (b) the last process in the production or manufacture of such goods has taken place in such territory; and (c) such other process as the Minister may prescribe in respect of any class or kind of goods, has taken place in the production or manufacture of goods of such class or kind in such territory. (2) The Minister may by regulation increase the percentage prescribed in subsection (1), in regard to any class or kind of imported goods, or any class or kind of such goods from a particular territory, to which such subsection applies. (Amended A.5/1991.) (3) The Government may by agreement with the government of any territory increase or reduce for the purposes of section 51 the percentage prescribed in subsection (1) in so far as such territory is concerned in regard to any class or kind of goods to which that subsection applies. (4) The Commissioner may — (a) in respect of any excisable or other goods produced or manufactured in Swaziland or any class or kind of such goods or any such goods in respect of which circumstances specified by rule apply, increase or reduce by rule the percentage prescribed in subsection (1); (b) by rule exclude from the provisions of subsection (1) any goods or class or kind of goods referred to in paragraph (a); (c) prescribe by rule that any goods or class or kind of goods referred to in paragraph (a) shall not be regarded as having been produced or manufactured in Swaziland unless such process in connexion with the production or manufacture as may be specified in such rule has taken place in Swaziland. (5) On any question arising whether in terms of this section goods shall be regarded as having been produced or manufactured in a particular territory, the decision of the Minister shall be final.

Payment of duty and rate of duty applicable.

46. (1) (Repealed A.5/1991.) (2) Duty levied in terms of this Act shall be paid into such account as the Minister for Finance may designate for the purposes of this section and shall be accounted for in terms of the customs union agreement: Provided that the Commissioner may in his discretion condone any under-payment of such duty where the amount of such under-payment in the case of — (a) goods imported by post is less than fifty cents; (b) goods imported in any other manner is less than five emalangeni; or (c) excisable goods is less than two emalangeni. (Added A.7/1981.) (3) The fiscal duty specified in Column III in any tariff heading or subheading in Part I of Schedule No. 1 shall apply to any goods to which such heading or subheading relates irrespective of the territory in which such goods were produced or manufactured. (Amended K.O-I-C. 17/1976.) (4) In addition to any fiscal duty which may be payable under subsection (2), customs duty at the most-favoured- nation-rate specified in Column V in any tariff heading or sub-heading in Part 1 of Schedule No. 1 shall apply to any goods to which such heading or sub-heading relates if such goods were produced or manufactured in any territory —(Amended A.5/1991.)

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(a) with the government of which an agreement has been concluded under section 51 and the agreement makes provision for the application of the most favoured nation rate of duty in respect of the importation of the goods in question; or (b) the government of which has acceded to the agreement approved by section 2 of the General Agreement on Tariffs and Trade Act if in respect of such territory such agreement applies as between the government concerned and the Government of the Kingdom of Swaziland. (Amended K.O-I-C 17/1976.) (5) In addition to any fiscal duty which may be payable under subsection (2), customs duty at the general rate specified in Column IV in any tariff heading or sub-heading in Part 1 of Schedule No. 1 shall apply to any goods to which such heading or sub-heading relates if the most-favoured-nation-rate of duty does not apply to such goods in terms of subsection (4). (Amended K.O-I-C. 17/1976; A.5/1991.) (6) Any export duty which may become payable in terms of section 47 shall be paid into the Consolidated Fund, at the time of entry of export, on such goods as may be specified in Part 6 of Schedule No. 1 in terms of the provisions of the said section. (Amended A.7/1981; A.5/1991.) (7) Any duty payable under section 53, any anti-dumping duty payable under section 55 and any countervailing duty payable under section 57 shall be paid into the account referred to in subsection (2). (Amended A.2/1985.) (8) Wherever the tariff heading or sub-heading under which any goods are classified in Part 1 of Schedule No. 1 is expressly quoted in any tariff item, or sales duty item, or surcharge item or item of Part 2, 3, 4 or 6 of the said Schedule or in any item in Schedule No. 2 in which such goods are specified, the goods so specified in the said tariff item, or sales duty item, or surcharge item or item of the said Part 2, 3, 4 or 6 or in the said item of Schedule No. 2, shall be deemed not to include goods which are not classified under such tariff heading or sub-heading. (Amended A.5/1991.) (9) The interpretation of Part 1 of Schedule No. 1 shall be subject to the Explanatory Notes to the Harmonised System and to the Customs Co-operation Council Nomenclature issued by the Customs Co-operation Council, Brussels, from time to time. (Amended A.5/1991.) (10) The Commissioner shall obtain and keep in his office two copies of such Explanatory Notes and shall incorporate in them any amendment of which he is notified by such Council and shall record the date of affecting each such amendment, and any such amendment shall for the purposes of this Act have effect from such date. (11) If in any legal proceedings any question arises as to the contents of such Explanatory Notes or as to the date upon which any amendment thereto was effected, a copy of the Explanatory Notes as amended under subsection (10) shall be accepted as sufficient evidence of the contents thereof and of the effective date of any such amendment. (12) (a) (i) The Commissioner may in writing determine the tariff headings, tariff sub-headings or items of any Schedule under which any imported goods or goods manufactured in Swaziland shall be classified. (Amended A.5/1991.) (ii) The acceptance by any officer of a bill of entry or the release of any goods as entered shall be deemed not to be any such determination. (b) Any determination so made shall, subject to appeal to the court be deemed to correct for the purposes of this Act, and any amount due in terms of any such determination shall remain payable as long as such determination remains in force. (c) The Commissioner may within 90 days from the date of any such determination publish it by notice in the Gazette. (d) The Commissioner may whenever he deems it expedient amend any such determination or withdraw it and make a new determination with effect from — (i) the date of first entry of the goods in question; (ii) the date of the notice referred to in paragraph (c); (iii) the date of the determination made under paragraph (a); (iv) the date of such new determination; or (v) the date of such amendment. 396

(e) An appeal against any such determination shall lie to the Supreme Court. Such appeal shall be prosecuted within a period of 90 days from the date of the determination. (Added A.7/1981.) (13) Save where — (a) a determination has been made under subsection (12)(a) or (d); or (b) any false declaration is made fo the purposes of subsection (12), there shall be no liability for any under-payment in duty on any goods, where such under-payment is due to the acceptance of a bill of entry bearing an incorrect tariff heading, tariff sub-heading or item of any Schedule, after a period of two years from the date of entry of such goods. (Added A.7/1981.) (14) Notwithstanding the provisions of subsection (13), any determination made under subsection (12)(a) following upon an inspection of the books or documents of any importer or manufacturer, shall be deemed to have come into operation in respect of the goods in question entered for customs and excise purposes, two years prior to the date on which the inspection commenced. (Added A.11/1988.)

Prohibition of dealing with goods not entered for home consumption

46bis. (1) Subject to this Act, no person shall remove, receive, take, deliver or deal with or in any imported or excisable goods intended for home consumption unless such goods have been duly entered for home consumption. (2) If an officer discovers any imported or excisable goods which are alleged to have been duly entered, in terms of any agreement, for home consumption in any territory with a government of which Swaziland has concluded such an agreement in terms of section 51 and he has reasonable cause to believe that such goods have not been so entered, he may detain such goods, and such goods shall thereupon be presumed, unless the contrary is proved, not to have been so entered and shall be to this Act as if they were goods which have, contrary to subsection (1), not been duly entered for home consumption in Swaziland. (Added A.11/1988.)

Application of Schedules and amendments thereto.

47. (1) Notwithstanding the date of commencement of this Act the Schedules to the Customs and Excise Act, No. 91 of 1964 of the Republic as amended from time to time, published in English prior to the commencement of this Act shall mutatis mutandis be deemed to be the correspondingly numbered Schedules to this Act, and the provisions thereof shall be deemed to have come into force respectively on the dates on which they came into force in the Republic, and any assessment or payment made prior to the commencement of this Act shall be deemed to have been lawfully made if it would have been authorized by this Act had this Act been in force on the date it was made. (2) Without prejudice to the generality of subsection (1) a reference to the Republic in any such Schedule shall be construed as a reference to Swaziland and a reference therein to a provision of the Customs and Excise Act, No. 91 of 1964 of the Republic shall mutatis mutandis be construed as a reference to a corresponding provision of this Act. (3) The Minister may amend the Schedules in their application to Swaziland by notice in the Gazette and may, if he deems fit, effect such amendments by incorporating therein by reference any printed matter published or issued anywhere, whether in Swaziland or elsewhere. (4) The power conferred by subsection (3) shall include the right to impose new, increased, or additional duties and any notice referred to in that subsection may provide for any amendment effected thereby to come into force with retrospective effect to a date specified in such notice. (5) The Commissioner shall keep at his office a copy of the said Schedules and shall cause a copy thereof to be kept at every place of entry and duty airport and at the office of the clerk of the House of Assembly and at such other place as the Minister may direct, and shall ensure that all amendments thereto made in accordance with this Act are forthwith incorporated in each such copy and that the date of the coming into force of each such amendment and the authority therefor is at the same time recorded on all such copies.

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(6) If the Minister has effected an amendment by reference to any printed matter then in addition to such printed matter being incorporated in the Schedules kept under subsection (5) a copy of all notices published under subsection (3) and of all such printed matter shall also be kept at the office of the Commissioner and at every place of entry, duty airport, office of the clerk of the House of Assembly and other place referred to in subsection (5). (7) The documents required to be kept in terms of subsections (5) and (6) shall be open for inspection by any member of the public during normal business hours, at the office of the Commissioner and at each place of entry or duty airport. (8) Any failure to comply with subsections (5), (6) or (7) shall not affect the validity of any Schedule or any amendment thereto.

Ordinary levy.

47bis. Notwithstanding anything to the contrary contained in this Act — (1) any amount leviable under any item of Part 8 of Schedule No. 1 shall be called an ordinary levy; (2) any such ordinary levy shall be paid into the Consolidated Fund of Swaziland and shall, for the purposes of section 46(2) be deemed to be a duty paid in accordance with the provisions of Schedule No. 1; and (3) any ordinary levy paid in respect of any goods intended for consumption in any territory, other than Swaziland, which forms part of the common customs area shall be paid by the Commissioner to the government of such territory at such times as he may determine. (Added A.5/1991.)

Additional duties under customs union agreement.

48. (1) Notwithstanding anything in this Act the Minister may by notice in the Gazette, after consultation with the Minister for Commerce, Industry and Tourism, amend the Schedules so as to levy a new, increased or additional duty on any goods — (Amended A.5/1991.) (a) imported into Swaziland for the purpose of protecting new industries in Swaziland as provided for by Article 6 of the customs union agreement; (b) intended for export or any class or kind or such goods or any goods intended for export in circumstances specified in such notice. (2) Section 47 shall mutatis mutandis apply to such notice and to any amendments effected thereby.

Agreement in respect of rates of duty lower than the general rates.

49. Subject to the customs union agreement the Government may conclude an agreement with the government or governing body of any territory whereby rates of duty lower than the general rates of duty specified in Part I of Schedule No. 1 are on import into Swaziland extended to goods produced or manufactured in that territory, whether or not such agreement is in consideration of equivalent privileges in respect of the import into that territory of goods produced or manufactured in Swaziland.

Agreement in respect of rates of duty lower than the most favoured nation rates.

50. Subject to the customs union agreement the Government may conclude an agreement with the government of any commonwealth country or of any territory which is under the protection of the Government of the United Kingdom of Great Britain and Northern Ireland or which is under the trusteeship of any commonwealth country, whereby in consideration of equivalent privileges in respect of goods imported into that country or territory from Swaziland, rates of duty lower than the most favoured nation rates of duty specified in Part I of Schedule No. 1 are extended to specific goods produced or manufactured in and imported from that country or territory.

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Agreement with any territory.

51. (1) The Government may conclude an agreement with the government of any territory in which it is provided that notwithstanding anything to the contrary in this Act — (a) goods produced or manufactured in or imported into Swaziland shall be admitted into that territory free of duty or at special rates of duty and goods produced or manufactured in or imported into that territory shall be admitted into Swaziland free of duty or at special rates of duty; (b) such arrangements (including arrangements providing for the prohibition or quantitative or other limitation or restriction of the import of any goods as may be agreed upon between the parties to the agreement shall apply in respect of the admission of any goods into the territory of one of the parties from the territory of the other party and in respect of the entry and the collection of duty on goods on import into the territory of any party from a territory other than the territory of the other party; (c) each party to the agreement shall be compensated in respect of duty on such goods to the extent and in the manner agreed upon between the parties to the agreement. (2) Payments made by the government of any territory to the Government in terms of any agreement concluded under subsection (1) shall accrue to the Consolidated Fund and payments by the Government to the government of any territory in terms of an agreement shall be paid out of an account referred to in section 46(2). (3) For the purposes of this Act, the customs union agreement and any other agreement which purports to have been concluded in terms of any law relating to customs and excise and which was being observed by Swaziland immediately prior to the commencement of this Act as being in force between Swaziland and any territory, shall be deemed to have been concluded in terms of, and to be, and at all relevant times to have been, within the powers conferred by, this section.

Agreement lapses if not approved by House of Assembly.

52. (1) Any agreement concluded under this Part shall be laid on the Table of the House of Assembly at the next meeting of Parliament following the date of the conclusion of such agreement and shall, unless that House otherwise provides before the end of such meeting be of full force and effect with effect from the date of its conclusion: Provided that no resolution of that House shall detract from the validity of anything done under such agreement up to the day following the date of such resolution. (2) Whenever in any legal proceedings any question arises as to whether during any meeting of Parliament an agreement was tabled as required by subsection (1), or as to the date upon which Parliament met for the first time for the despatch of business in such meeting after the date of conclusion of such agreement, or as to the date upon which such meeting ended, or as to any resolution of the House of Assembly thereon, a copy of the minutes of the proceedings of the House of Assembly, indicating any such fact and specifying any such date and certified by the clerk of such House to be a true copy of such minutes, shall be accepted as sufficient evidence of such fact and date.

Discrimination by other countries.

53. (1) If the Minister is satisfied that the government of any territory has — (a) imposed directly or indirectly on any goods wholly or partly produced or manufactured in Swaziland any duty, charge or restriction which is not imposed upon like goods produced or manufactured in any third territory; or (b) discriminated against the commerce of Swaziland in such a way as to place it at a disadvantage in comparison with the commerce of a third territory; he may after consultation with the Minister for Commerce, Industry and Tourism if he considers that the public interest will be served thereby, by notice in the Gazette impose — (Amended A.5/1991.) (i) on all goods or any class or kind of goods imported from the territory whose government has so acted; and (ii) on all goods or any class or kind of goods whencesoever imported, wholly or partly produced or manufactured in such territory;

399 additional duties not exceeding the value for duty purposes of such goods, and from a date’ to be specified in the notice there shall be paid on such goods, upon entry for home consumption thereof, the additional duties at the rates imposed in such notice, in addition to any other duties payable on such goods under this Act. (2) Any additional duty imposed in terms of subsection (1) shall be set out in the form of a schedule which shall be deemed to be incorporated in Schedule No. 1 as Part 7 thereof and to constitute an amendment of Schedule No. 1. (Amended A.5/1991.) (3) Section 47 shall mutatis mutandis apply to an amendment made under this section.

Provisions with regard to stamp duties.

54. (1) Any duty in respect of which it is indicated in any tariff item in Part 2 of Schedule No. 1 that such duty is a stamp duty shall be paid by means of stamp label affixed to the container of the goods to which such duty relates or be determined by means of a stamp impression made on the container of such goods: Provided that the Commissioner may, in such circumstances and for such period as he may determine, accept the duty due on such goods in cash. (2) The Minister may by regulation prescribe the size and type of container which may be used by a manufacturer for the packing of goods liable to stamp duty and the manner in which such stamp label or impression shall be affixed to or made on such container and no such goods shall be sold or disposed of or removed from the duty manufacturing warehouse in question in partly or completely manufactured condition except in accordance’ with this Act. (3) A manufacturer, including a manufacturer outside Swaziland may, subject to such conditions as the Commissioner may impose, be allowed to exchange stamp labels which — (a) have been unavoidably damaged, in the case of a manufacturer — (i) in Swaziland, in his duty warehouse; or (ii) outside Swaziland, in his factory premises; or (b) are lawfully in his possession but are no longer required by him; or (c) are faulty; for stamp labels of an equal value; or he may be granted a refund of the duty represented by any stamp label referred to in paragraph (a), (b) or (c). (4) In Swaziland stamp labels may only be sold to a manufacturer licensed under this Act to manufacture goods liable to stamp duty or to any person authorized by the Commissioner to purchase such stamp labels and such manufacturer or person shall not sell or dispose of such stamp labels to any other person except with the permission of the Commissioner. (5) Stamp labels sold to a person outside Swaziland shall not be imported except for delivery to the Commissioner. (6) The Minister may in respect of any goods liable to stamp duty or any class or kind of such goods make such regulations as he deems necessary in regard to the cancellation of stamp labels or impressions. (7) Any manufacturer, dealer or other person who fails to cancel any stamp label or impression which, in terms of any such regulation it is his duty to cancel, shall be guilty of an offence. (8) No person shall — (a) counterfeit or make any facsimile of any stamp label, die or impression stamp prescribed under this Act; or (b) be in possession of, use or offer for sale or for use — (i) any stamp label, die or impression stamp counterfeited in contravention of paragraph (a); or (ii) any facsimile of any stamp label, die or impression stamp made in contravention of such paragraph; or (c) use or offer for sale or for use any used stamp label. (9) A manufacturer who is required under this Act to use any prescribed stamp label, die, impression stamp, ink or any other material, or any stamping, counting or franking machine for any specified purpose or in any specified manner, shall not use any stamp label, die, impression stamp, ink or other material, or any stamping, counting or franking machine not so prescribed for such purpose, or use any such prescribed goods in any manner other than the prescribed manner. 400

(10) Subject to the proviso to subsection (1), no manufacturer or importer shall remove any goods which are liable to stamp duty or permit them to be so removed from his premises unless the containers of such goods have been stamped in accordance with the regulations and no dealer or other person shall sell or expose for sale or have in his possession any such goods in respect of which any regulation relating to the stamping of the containers of such goods has not been complied with.

PART VI

ANN-DUMPING DUTIES

Anti-dumping duties provided for in Schedule No. 2.

55. (1) Subject to this section and any regulations, the goods specified in Schedule No. 2 shall, upon entry for home consumption or in the case of goods subject to sales anti-dumping duty at such time as the Minister may prescribe, be liable, in addition to any other duty payable under this Act, to the appropriate anti-dumping duties provided for in respect of such goods in that Schedule at the time of such entry or at the time so prescribed, if they are imported from or originate in a territory specified in that Schedule in respect of those goods. (2) The Minister may by notice in the Gazette amend Schedule No. 2 if he is satisfied, in respect of goods which are of a class or kind produced or manufactured in Swaziland, that the circumstances set forth in subsection (4) exist, that detriment may from one or more of those circumstances result to an industry within Swaziland and that it would be in the public interest to impose the appropriate anti-dumping duty specified in subsection (4) in respect of such goods: Provided that the Minister may limit the amount of anti-dumping duty mentioned in subsection (4) to a percentage of the value for duty purposes of such goods or alternatively to a specific rate per unit of quantity, volume or weight, which percentage or alternative specific rate shall be determined by him. (3) If the Minister is satisfied in terms of subsection (2) that it would be in the public interest to impose a freight anti-dumping duty on any goods, he may for that purpose determine (by amending Schedule No. 2 by notice in the Gazette) the minimum rate of freight which shall be applicable to that class or kind of goods when conveyed from any particular territory or place to any place of discharge in Swaziland or to any place in Africa at which goods are discharged for removal overland into Swaziland: Provided that the minimum rate of freight so determined shall in no case exceed the normal rate of freight as certified in terms of subsection (4)(c). (4) The anti-dumping duties which may be imposed and the circumstances in which they may be imposed in terms of subsection (2) shall be the following — (a) “ordinary anti-dumping duty”, which may be imposed when goods have been or are being or are likely to be exported to Swaziland at a free on board price (as defined in section 67 excluding the proviso thereto) which is less than their domestic value (as defined in section 66) and which shall be the amount by which such domestic value exceeds such free on board price or, in the case of goods in respect of which no charge is made, a price which the Commissioner may in his discretion determine; (b) “bounty anti-dumping duty”, which may be imposed when goods have been or are being or are likely to be exported to Swaziland and a bounty has been or will be granted in respect thereof in the territory in which they were produced or manufactured or from which they were exported, and which shall be the amount of such bounty, whether such bounty is by way of a bonus, rebate, subsidy or otherwise, and whether it is granted by a government or other authority or person; (c) “freight anti-dumping duty”, which may be imposed when goods have been or are being or are likely to be conveyed to Swaziland from a particular territory or place of despatch at a rate of freight less than the rate certified by the Minister, as being the normal rate chargeable on that class or kind of goods from that territory or place and which shall be the amount by which the minimum rate of freight determined by the Minister in terms of subsection (3) exceeds the rate of freight actually paid; (d) “exchange anti-dumping duty”, which may be imposed when goods have been or are being or are likely to be imported into Swaziland from a territory the currency of which is depreciated in relation to the currency

401

of Swaziland or when the currency of the territory of origin of such goods which have been or are being or are likely to be imported into Swaziland is likewise depreciated, and which shall be the amount by which their free on board price (as defined in section 67) of such goods is less than their price expressed in the currency of the territory of origin or export of the goods and converted into the currency of Swaziland at a rate which the Minister may determine and notify by means of an amendment of Schedule No. 2; or (e) “sales anti-dumping duty”, which may be imposed when goods are being or are likely to be sold or offered for sale at a place in Swaziland in the ordinary course of trade in wholesale quantities for an amount which is less than their domestic value (as defined in section 66) plus freight, insurance and all charges to that place, including landing, transportation and delivery charges and any duty (other than an anti-dumping duty imposed under this Part) payable under this Act, and which shall be the amount by which such domestic value of the goods, plus the expenses and charges set forth in this paragraph, exceeds the wholesale selling price in Swaziland. (5) Section 47 shall, mutatis mutandis, apply to any notice and amendment under this section. (6) The anti-dumping duties mentioned in subsection (5)(a), (b), (c) and (d) shall be paid by the importer of the goods at the time of their entry for home consumption and the anti-dumping duty mentioned in subsection (5)(e) shall be paid by the person in Swaziland who sells the goods in the prescribed manner and time. (7) If anti-dumping duty is imposed on any goods under this section, the owner of any such goods stored in a duty warehouse shall produce the invoice and other documents relating to such goods to the controller not later than the time of entry of all or any part of such goods for removal from such warehouse except in respect of such goods entered for export from a duty warehouse.

Anti-dumping duties not normally applicable to goods entered under Schedule No. 3 or 4.

56. (1) An anti-dumping duty imposed under section 55 shall not apply to any goods entered under any item specified in Schedule No. 3 or 4 unless such item is specified in Schedule No. 2 in respect of such goods. (1bis) The Minister may, in respect of any class or kind of imported goods on which a provisional charge has been imposed under section 57bis amend Schedule No. 2 — (a) with effect from the date from which that provisional charge has been imposed; (b) with effect from a date not more than three months prior to the date with effect from which that provisional charge has been imposed if he is satisfied that — (i) such goods have been repeatedly dumped, as contemplated in subsection (2), and have caused material injury to an established industry in Swaziland; or (ii) the importer should have been aware that the exporter is so dumping and that such dumping would cause such injury and the Minister is of the opinion that the dumping operates to such an extent in such quantities and for such short period that in order to prevent such dumping, he deems it necessary so to amend Schedule No. 2. (Added A.4/1979.) (2) (b) (iii) the highest comparable price for identical or comparable goods when exported from any other territory to Swaziland in the ordinary course of trade; Amended A.11/1988) (7) The provisions of section 47 shall mutatis mutandis apply in respect of any amendment made under subsection (1) or (ibis) of this section. (Repealed A.11/1988; added A.5/1991.)

Exclusion of certain goods from payment of anti-dumping duty.

57. Notwithstanding section 55, the Commissioner may, subject to such conditions as he may impose in each case, exempt from payment of any anti-dumping duty, genuine trade samples, replacement parts proved to his satisfaction to have been imported in such circumstances that locally manufactured parts of the same class or kind cannot reasonably be used and that such imported parts are not intended for trade purposes, or any other goods which are imported in such

402 circumstances or in such quantities that the import of such goods does not, in his opinion, constitute regular import of such goods for trade purposes.

57bis (1) If the Minister is satisfied before any anti-dumping duty is imposed under section 56 that the requirements of section 56(1)(a), (b) and (c) are met in respect of any class or kind of imported goods, he may by notice in the Gazette impose a provisional charge in relation to anti-dumping duty on imported goods of that class or kind for a period not exceeding four months as from date of publication of such notice, or, if rrequested by the exporter concerned before the expiry of the said period, for a further period not exceeding two months. (Amended A.11/1988.)

PART VII

EFFECT OF AMENDMENT OF DUTIES

Time when new or increased duties become payable.

58. (1) For the purposes of this section —

“dealer” means any person who deals in any goods to which this Act relates and includes a club or co-operative society of any nature and any statutory body;

“deliver” includes any form of delivery except traditic brevi manu and constitutum possessorium.

“retail dealer” means, subject to the definition of “wholesale dealer”, any dealer who deals in or holds a License under any law to deal in retail quantities; and

“wholesale dealer” means any dealer who deals in or holds a License under any law to deal in wholesale quantities, and the business and stocks of a wholesale dealer shall be deemed to include the business and stocks of any retail dealer who conducts business on the same premises on which the wholesale dealer conducts his business as such. (2) If the Minister in any amendment to a Schedule imposes a new duty or increases the rate of duty already payable upon any goods specified in such amendment, such new duty or increased rate of duty shall, subject to subsection (3), be payable from the time such amendment is made on all such goods as have not, at the date of coming into force of such amendment, been entered for home consumption. (3) If any amendment is made to a Schedule in terms of which a new duty or an increase in the rate of duty already payable upon any goods is imposed with retrospective effect, the Minister may in such amendment specify that for the purposes of this subsection any such goods specified in such amendment though entered for home consumption prior to the time of such amendment and notwithstanding that such goods have passed out of customs, excise and sales duty control, shall become liable to the new duty or the difference between the rate of duty at the time of such amendment and the increased rate provided for in such amendment, if they have at the time of such amendment not been delivered from the stocks of an importer, manufacturer or such class of dealer as the Minister may specify in such amendment. (4) For the purposes of this section any goods which are specified by the Minister in any amendment to a Schedule for the purposes of subsection (3) and which, at the time of the said amendment are in transit to an importer, manufacturer or a class of dealer so specified, shall be deemed to form part of the stocks of the importer, manufacturer or dealer, as the case may be, notwithstanding terms to the contrary in any contract relating to the sale or delivery of such goods. (5) If the Minister has specified any goods in any amendment to a Schedule for the purposes of subsection (3), every importer, manufacturer or dealer specified in such amendment shall, in respect of any goods so specified — (a) forthwith take stock of all such goods which have not been delivered from his stocks at the time when the amendment was published, and make a clear and accurate record of imported, excisable and sales duty goods separately; (b) within ten days of the date on which such amendment was published, deliver to the controller a sworn statement giving separately the description and quantity of all such imported, excisable and sales duty goods which were in his stocks at that time, and any other information which the Commissioner may require from him; and

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(c) on or before the last working day of the month following the month in which the amendment was published, pay to the controller the amount of duty payable by him under subsection (3) in respect of such goods. (6) If the Minister specifies in any amendment to a Schedule for the purposes of subsection (3) that any goods so specified shall be liable to the duties so specified if they have not been delivered from the stocks of a wholesale dealer at the time of such amendment, subsection (4) shall apply to the stocks of such wholesale dealer and of any retail dealer conducting his business on the same premises: Provided that the Commissioner may, on production by such wholesale dealer of such evidence as he may require, exclude from the stocks or the liability for duty of such wholesale dealer for the purposes of subsection (3) — (a) stocks of a class or kind which are sold by such retail dealer only; and (b) such proportion of the total duty payable by such wholesale dealer as is represented by the proportion of retail sales to total sales of such goods during the period of three months immediately preceding the date of such amendment, such proportion to be calculated on the basis of quantities of each commodity concerned.

Contract price may be varied to extent of alteration in duty.

59. (1) If any duty on any goods is imposed or increased, directly or indirectly, by an amendment in any manner of any Schedule, and such goods, in pursuance of a contract made before such duty or increased duty became payable, are thereafter delivered to and accepted by the purchaser, the seller of such goods may, in the absence of agreement to the contrary, recover as an addition to the contract price a sum equal to any amount paid by him by reason of such duty or increase. (2) If any duty on any goods is withdrawn or decreased directly or indirectly by an amendment in any manner of any Schedule, and such goods in pursuance of a contract made before the withdrawal or decrease became effective are thereafter delivered to the purchaser, the purchaser of such goods may, in the absence of agreement to the contrary, if the seller has in respect of such goods had the benefit of the withdrawal or decrease, deduct from the contract price a sum equal to such duty or decrease. (3) This section shall also apply to a contract for the hiring of any goods or the use of any goods in rendering a service at a contract price, and the expression “seller” and “purchaser” shall be construed respectively as including the person by whom and the person to whom such goods are hired or the service is rendered.

PART VIII

LICENSING

License fees according to Schedule No. 8.

60. (1) No person shall perform any act or be in possession of or use anything in respect of which a License is required under this Act unless he has obtained the appropriate License prescribed in Schedule No. 8 which shall not be issued unless the prescribed License fee has been paid. (2) The Commissioner may, subject to an appeal to the Minister, whose decision shall be final — (a) refuse any application for a new License; or (b) refuse any application for a renewal of any License or cancel or suspend for a specified period any License if the applicant or the holder of such License, as the case may be — (i) has contravened or failed to comply with the provisions of this Act; or (ii) has been convicted of an offence under this Act or has incurred a penalty under section 91; or (iii) has been convicted of an offence involving dishonesty. (Amended A.2/1985.)

Duty warehouse License.

61. (1) Before a duty warehouse is licensed the person applying for such License shall furnish such security as the Commissioner may require.

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(2) The Commissioner may at any time require that the form, nature or amount of such security shall be altered or renewed in such manner as he may determine. (3) The Commissioner may by endorsement permit a License to be transferred from one duty warehouse to another in the area controlled by the same controller and in the possession of the person to whom the License has been issued, but no duty warehouse License shall be transferable from one person to another. (4) Not more than one License shall be issued in respect of any duty warehouse.

Agricultural distiller.

62. (1) No person shall be granted a License under this Act as an agricultural distiller unless the Minister is satisfied that such person is capable of producing on his farm in respect of which the application for a License relates more than five leaguers of wine per annum calculated at a strength of 11,5 per cent absolute alcohol by volume. (2) No License issued under this Act to any person as an agricultural distiller may be transferred to any other person or from one farm to another. (3) Any License issued under this section to any person shall lapse upon his death or upon his conviction for an offence under this Act or any law relating to the illicit manufacture, conveyance, supply or possession of intoxicating liquor. (4) For the purposes of subsection (3) the imposition of a penalty by the Commissioner under section 91 shall be deemed to be a conviction under this Act.

Still to be licensed.

63. (1) No person shall own or have in his possession or under his control any still except under a License prescribed in Schedule No. 8 and subject to any regulation: Provided that the Commissioner may, subject to any conditions he may impose, exempt from any provision in this subsection — (a) any licensed still maker in respect of any still manufactured or imported by him for sale and in his possession; or (b) any person in respect of any still which he has proved to the satisfaction of the Commissioner is in his possession solely as a curiosity or ornament or is used solely for such purpose as the Commissioner may, subject to any regulation, authorize. (2) Section 62(2), (3) and (4) shall mutatis mutandis apply to any License issued in respect of a still under this Act to any person to whom a License under this Act has been or had at any time been issued as an agricultural distiller. (3) If any agricultural distiller to whom a License in respect of a still has been issued under this Act voluntarily abandons such still to the department, the Commissioner may, out of moneys appropriated by Parliament for that purpose, pay to him as compensation such amount as the Commissioner considers to be the current market value of such still. (4) If any person has so abandoned a still no License to own a still to be used by him in the capacity of an agricultural distiller shall thereafter be granted to him unless a new License as an agricultural distiller has, thereafter, been issued to him under this Act. (5) Any still abandoned under this section shall be destroyed by the Commissioner.

Special warehouse for the manufacture of wine.

64. Unless the permission of the Commissioner has been obtained to manufacture wine in a duty manufacturing warehouse, no person shall manufacture wine except in a special duty warehouse licensed under this Act.

Container depot Licenses.

64bis. (1) No person shall store or unpack or pack for export, such containers as the secretary may specify, except at a container depot licensed in terms of subsection (2). (2) The secretary may, subject to such conditions as he may in each case impose License, for such period as he may in each case determine, at any place appointed for that purpose under this Act, container depots approved by him for the 405 storing, unpacking or packing of containers contemplated in subsection (1) provided such security as he may require is furnished. (3) The secretary may at any time require that the form, nature or amount of such security shall be altered or removed in such manner as he may determine. (4) The controller may require any container contemplated in subsection (1) to be detained in any container depot licensed in terms of subsection (2) for its examination or that of its contents.

(Added A.10.1978.)

PART IX

VALUE

Value for customs duty purposes.

65. (1) Subject to this Act, the value for customs duty purposes of any imported goods shall, at the time of entry for home consumption, be the transaction value thereof, within the meaning of section 66. (2) If such value of any imported goods of a single denomination is— (a) in excess of one lilangeni, such value shall for the purpose of assessing the amount of duty payable, be calculated to the nearest lilangeni, an amount of 50 cents being regarded as less than one half of one lilangeni; (b) less than one lilangeni, such value shall be calculated as one lilangeni. (3) Unless the context otherwise indicates, any reference in this Act to customs value or to value for duty purposes, in relation to imported goods, shall be deemed to be a reference to value for customs duty purposes. (Amended A.7/1981.) (4) (a) If in the opinion of the Commissioner the transaction value of any imported goods cannot be ascertained in terms of section 66 or has been incorrectly ascertained by the importer, the Commissioner may determine a value, which shall, subject to a right of appeal to the Minister be deemed to be the value for customs duty purposes of the goods. (b) The acceptance by any officer of a bill of entry or the release of any goods as entered shall not be deemed to be any such determination. (c) Any determination so made shall be deemed to be correct for the purposes of this Act, and any amount due in terms of any such determination shall remain payable as long as such determination remains in force. (5) The Commissioner may whenever he deems it expedient amend or withdraw any such determination and make a new determination with effect from — (a) the date of first entry of the goods in question; (b) the date of the determination made under subsection (4); (c) the date of such new determination; or (d) the date of such amendment. (6) Save where — (a) a determination has been made under subsection (4)(a) or (5); or (b) any false declaration is made for the purposes of subsection (4) or (5), there shall be no liability for any underpayment of customs duty on any goods, where such underpayment is due to the acceptance of a bill of entry bearing an incorrect customs value, after a period of two years from the date of entry of such goods. (6bis) Notwithstanding the provisions of subsection (6), any determination made under subsection (4)(a) following upon an inspection of the books or documents of any importer shall be deemed to have come into operation in respect of the goods in question and entered for customs purposes, two years prior to the date on which the inspection commenced. (Amended A.11/1988.) (7) (a) Notwithstanding subsections (1) and (4), the value for purposes of the duty specified in Section B of Part 2 of Schedule No. 1 shall, in respect of imported goods other than goods entered in terms of item 412.18 of Schedule No. 4,

406 be the transaction value thereof plus fifteen percent of such value, plus any non-rebated customs duty payable in terms of Part 1 and Section A of Part 2 of Schedule No. 1 on such goods, but excluding the duty specified in Section B of Part 2 of Schedule No. 1 on such goods. (Amended A.11/1988.) (b) Subsection (1)(a) and (b) or (3) of section 69 shall mutatis mutandis apply to the ascertainment or determination of the value for the purposes of the duty specified in Section B of Part 2 of Schedule No. 1 in respect of any imported goods entered in terms of item 412.18 of Schedule No. 4. (Amended A.11/1988; A.5/1991.) (8) For the purposes of sections 66 and 67, unless the context otherwise indicates — (i) “buying commission”, in relation to imported goods, means any fee paid by an importer to his agent for representing him abroad in the purchase of and the payment for the goods; (ii) “goods of the same class or kind”, in relation to imported goods, means goods produced by a particular industry or industry sector in the country from which the imported goods were exported, and falling within the same group or range of goods as the imported goods; (iii) “identical goods”, in relation to imported goods, means goods produced in the same country and by the same or a different producer as the imported goods and which are the same in all respects, including physical characteristics, quality and reputation but excluding minor differences in appearance, as the imported goods, but does not include goods, incorporating or reflecting engineering, development work, art work, design work, plans or sketches undertaken in Swaziland; (iv) “price actually paid or payable”, in relation to imported goods, means the total payment made or to be made, either directly or indirectly, by the buyer to or for the benefit of the seller for the goods, but does not include dividends or other payments passing from the buyer to the seller which do not directly relate to the goods; (v) “similar goods”, in relation to imported goods, means goods produced in the same country and by the same or a different producer as the imported goods and which although not alike in all respects to the imported goods have, with due regard to their quality and reputation and the existence of a trade mark, like characteristics and like component materials which enable them to be employed for the same purposes and to be commercially interchangeable, but does not include goods incorporating or reflecting engineering, development work, art work, design work, plans or sketches undertaken in Swaziland. (Amended K.O-I-C. 17/1976; A.4/1979; A.7/1981; A.2/1985.)

Transaction value. (Amended A.5/1991.)

66. (1) Subject to this Act the transaction value of any imported goods shall be the price actually paid or payable for the goods when sold for export to Swaziland adjusted in terms of section 67, provided — (a) there are no restrictions as to the disposal or use of the goods by the buyer other than restrictions which — (i) are imposed or required by law; (ii) limit the geographical area in which the goods may be resold; or (iii) do not substantially effect the value of the goods; (b) the sale or such price of the goods is not subject to any term or condition for which a value cannot be determined; (c) no part of the proceeds of any disposal, use or subsequent resale of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in terms of section 67; (d) subject to subsection (3), the seller and the buyer are not related within the meaning of subsection (2)(a). (2) (a) For the purposes of subsection (1)(d), two persons shall be deemed to be related only if — (i) they are officers or directors of one another’s businesses; (ii) they are legally recognized partners in business; (iii) the one is employed by the other; (iv) any person directly or indirectly owns, controls or holds five per cent or more of the equity share capital of both of them;

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(v) one of them directly or indirectly controls the other; (vi) both of them are directly or indirectly controlled by a third person; (vii) together they directly or indirectly control a third person; or (viii) they are members of the same family; (b) Persons who are associated in business with one another in that the one is the sole agent, sole distributor or sole concessionary, however described, of the other shall be deemed to be related only if they are so deemed in terms of paragraph (a). (c) Every importer of goods which are not exempted by regulation shall, when making entry of the goods, declare, in the manner prescribed by regulation, whether or not he is related to the supplier of the goods within the meaning of this section. (3) Notwithstanding subsection (1)(d), the fact that a buyer and a seller are related within the meaning of subsection (2)(a) shall not in itself be a ground for not accepting the transaction value, where — (a) in the opinion of the Commissioner such relationship did not influence the price paid or payable; or (b) the importer proves to the satisfaction of the Commissioner that the transaction value closely approximates to one of the following values, namely — (i) the transaction value of identical or similar goods sold at comparable trade and quantity levels to unrelated buyers in Swaziland at or about the same time as the goods to be valued; (ii) the value, ascertained in terms of subsection (7), of identical or similar goods imported into Swaziland at or about the same time as the goods to be valued; (iii) the value, ascertained in terms of subsection (8), of identical or similar goods imported into the Republic at or about the same time as the goods to be valued. (4) (a) If the transaction value of any imported goods cannot be ascertained in terms of subsection (1), it shall be the price actually paid or payable for identical goods in a sale for export to Swaziland at the same commercial level and in substantially the same quality and exported at or about the same time as the goods to be valued, adjusted, with reference to differences in any costs and charges referred to in section 67, on account of differences in distances and modes of transport to the port or place of export. (b) Where no such sale is found, a sale of identical imported goods at either a different commercial or quantity level, or at a different commercial level and quantity level, adjusted to compensate for such differences, shall be used to ascertain the transaction value. (c) If in the application of this subsection more than one transaction value is ascertained, the lowest such value shall be the transaction value of the goods to be valued. (5) (a) If the transaction value of any imported goods cannot be ascertained in terms of subsection (4), it shall be the price actually paid or payable for similar goods in a sale for export to Swaziland at the same commercial level and in substantially the same quantity and exported at or about the same time as the goods to be valued, adjusted, with reference to differences in any costs and charges referred to in section 67, on account of differences in distances and modes of transport to the port or place of export. (b) Where no such sale is found, the provisions of paragraphs (b) and (c) of subsection (4) shall mutatis mutandis apply. (6) If the transaction value of any imported goods cannot be ascertained in terms of subsection (5), it shall be ascertained in terms of subsection (7) or, when it cannot be ascertained in terms of subsection (7), it shall be ascertained in terms of subsection (8): Provided that at the request, in writing, of the importer concerned the order of application of subsections (7) and (8) shall be reversed. (7) (a) If the imported goods or identical or similar imported goods are sold in Swaziland in the same condition as that in which they were when imported, the transaction value of the imported goods in terms of this subsection shall be based on the unit price at which the imported goods or identical or similar imported goods are sold in Swaziland in the greatest aggregate quantity, at or about the time of importation of the goods to be value, by the importers thereof to persons not related to them, subject to deductions for —

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(i) commissions usually paid or agreed to be paid or additions usually made for profit and general expenses, including the direct and indirect costs of marketing the goods relative to sales in Swaziland of imported goods of the same kind or class as the goods to be valued, irrespective of the country of exportation; (ii) the cost of transportation and the cost of loading, unloading, handling, insurance and associated costs incidental to the transportation of the goods from the port or place of export in the country of exportation to the importer’s premises in Swaziland; and (iii) any duties or taxes paid or payable in Swaziland by reason of the importation of the goods or sale of the goods within Swaziland. (b) If neither the imported goods nor identical nor similar imported goods are sold at or about the time of importation of the goods to be valued, the transaction value of the imported goods in terms of this subsection shall, subject to the provisions of paragraph (a), be based on the unit price at which the imported goods or identical or similar imported goods are sold in Swaziland in the same condition as that in which they were when imported, at the earliest date after the importation of the goods to be valued, but not later than 90 days after such importation. (c) If neither the imported goods nor identical nor similar imported goods are sold in Swaziland in the same condition as that in which they were imported, then, if the importer so requests in writing, the transaction value of the imported goods in terms of this subsection shall be based on the unit price at which the imported, goods, after further processing, are sold in the greatest aggregate quantity to persons in Swaziland not related to the sellers of such goods, due allowance being made for the value added by such processing and the deductions referred to in paragraph (a). (8) The transaction value of any imported goods in terms of this subsection shall be based on a computed value, computed by means of information supplied by the producer and consisting of the sum of — (a) the cost or value of materials and manufacture or other processing in producing the goods; (b) the cost of — (i) packing, including that of the labour or materials concerned; and (ii) containers which are dealt with as being for customs purposes one with the goods, in question; (c) the value, apportioned to the imported goods as deemed appropriate by the Commissioner with due regard to any relevant request by the importer, of any of the following goods and services if supplied directly or indirectly by the importer free of charge or at reduced cost, for use in connection with the production and sale for export of the imported goods, in so far as such value has not been included in the price actually paid or payable, namely — (i) materials, components, parts and similar articles forming part of the imported goods; (ii) tools, dies, moulds and similar articles used in the production of the imported goods; (iii) materials consumed in the production of the imported goods; (iv) engineering, development work, art work, design work, plans and sketches undertaken elsewhere than in Swaziland and necessary for the production of the imported goods; (d) the cost of transportation, loading, unloading, handling and insurance and associated costs, incidental to delivery of the imported goods at the port or place of export in the country of exportation and placing those goods on board ship or on any vehicle, at that port or place, ready for export to Swaziland; (Amended A.5/1991.) (e) an amount for profit and general expenses equal to that generally applicable in sales of goods of the same class or kind as the imported goods, which are made by producers in the country of exportation. (9) Where the transaction value of any imported goods cannot be ascertained in terms of the provisions of subsection (8), the Commissioner may determine such value on the basis of a previous determination or, where there is no previous determination, by such application as he may deem reasonable of any manner of ascertaining the transaction value in terms of subsection (1), (4), (5), (7) or (8), but no such determination shall be based on — (a) the selling price in the Kingdom of goods produced in Swaziland; (b) a system which provides for the acceptance for customs purposes of the higher of two alternative values;

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(c) the selling price of goods on the domestic market of the country of origin or of exportation of the imported goods; (d) the cost of production, other than computed values which have been determined for identical or similar goods in accordance with subsection (8); (e) the price of the goods for export to a country other than Swaziland; (f) a system of minimum customs values; or (g) arbitrary or fictitious values. (10) For the purpose of subsection 7(a)(ii) or (8)(d), goods which are exported to Swaziland from any country but pass in transit through another country shall, subject to any conditions which may be prescribed by regulation, be deemed to have been exported direct from the first-mentioned country. (11) For the purposes of subsection (7)(a)(ii) or (8)(d), the port or place of export referred to therein shall be the place where the goods in question are — (a) placed on board ship or on any vehicle in the country of exportation, ready for export to Swaziland; or (Amended A.5/1991.) (b) placed on the vehicle which conveys them across the border of the country from which they are exported to Swaziland. (Amended A. 7/1981; A.2/1985.)

Free on board price.

67. (1) In ascertaining the transaction value of any imported goods in terms of section 66(1), there shall be added to the price actually paid or payable for the goods — (a) to the extent that they are incurred by the buyer but are not included in the price actually paid or payable — (i) any commission other than a buying commission; (ii) brokerage; (iii) the cost of packing, including that of the labour and materials concerned; (iv) the cost of containers which are dealt with as being for customs purposes one with the goods; (b) the value, apportioned to the imported goods as deemed appropriate by the Commissioner, of any of the following goods and services if supplied directly or indirectly by the importer free of charge or at reduced cost, for use in connection with the production and sale for export of the imported goods, to the extent that such value has not been included in the price actually paid or payable, namely — (i) materials, components, parts and similar articles forming part of the goods; (ii) tools, dies, moulds and similar articles used in the production of the goods; (iii) materials consumed in the production of the goods; (iv) engineering, development work, art work, design work, plans and sketches undertaken elsewhere than in Swaziland and necessary for the production of the goods; (c) royalties and License fees in respect of the imported goods, including payments for patents, trade marks and copyright and for the right to distribute or resell the goods, due by the buyer, directly or indirectly, as a condition of sale of the goods for export to Swaziland to the extent that such royalties and fees are not included in the price actually paid or payable, but excluding charges for the right to reproduce the imported goods in the Republic; (d) the value of any part of the proceeds of any subsequent resale, disposal or use of the imported goods that accrues directly or indirectly to the seller; and (e) to the extent that it is not included in the price actually paid or payable for the goods, the cost of transportation and the cost of loading, unloading, handling, insurance and associated costs incidental to delivery of the goods at the port or place of export in the country of exportation, ready for export to Swaziland. 410

(2) In ascertaining the transaction value of any imported goods in terms of section 66(1), there shall be deducted from the price actually paid or payable for the goods, to the extent that they are included therein, amounts equal to — (a) the cost of transportation and the cost of loading, unloading, handling, insurance and associated costs incidental to the transportation of the goods from the port or place of export in the country of exportation to the port or place of importation in Swaziland; (b) any of the following costs, charges or expenses if identified separately from the balance of the price actually paid or payable for the goods, namely — (i) any expenditure incurred for the construction, erection, assembly or maintenance of, or technical assistance provided in respect of, the goods after they are imported; (ii) the cost of transport and insurance of the goods within Swaziland; (iii) any duties or taxes paid or payable by reason of the importation of the goods or sale of the goods in Swaziland; (iv) any duty or tax applicable in the country of exportation from which the goods have been or will be relieved by way of refund, drawback, rebate or remission; (v) buying commission; (vi) interest charged in respect of the price payable for the goods; (vii) any charge for the right to reproduce the imported goods in Swaziland. (3) For the purposes of subsection (1)(e) or (2)(a), goods which are exported to Swaziland from any country but pass in transit through another country shall, subject to such conditions as may be prescribed by regulation, be deemed to have been exported direct from the first mentioned country. (4) For the purposes of subsection (1)(e) or (2)(a), the port or place of export referred to therein shall be the place where the goods in question are — (a) packed in a container as defined in section 1(2) in the country of export or, if not so packed in a container, placed on board ship or on any vehicle in the country of exportation ready for export to Swaziland; or (b) placed on the vehicle which conveys them across the border of the country from which they are exported to Swaziland.

(Repealed A.19/1978; re-instated A.2/1985.)

68. (Repealed A.19/1978.)

Value for excise duty purposes.

69. (1) (a) For the purpose of assessing the excise duty on any goods manufactured in Swaziland and specified in Section B of Part 2 of Schedule No. 1 (other than goods specified in items 122.10 to 122.40), the value thereof shall, subject to this section, be taken as — (i) the full and final market price (before deduction of any discounts other than cash discounts) at which, at the time of sale, such or similar goods are freely offered for sale for consumption in Swaziland, for purposes of trade in the principal markets of Swaziland in the ordinary course of trade, in the usual wholesale quantities and in the condition and the usual packing ready for sale in the retail trade, to any independent merchant wholesaler in Swaziland under fully competitive conditions; (ii) the cost of packing and packages and all other expenses incidental to placing the goods on rail for delivery to the purchaser; and (iii) any non-rebated excise duty payable in terms of Section A of Part 2 of Schedule No. 1 on such goods, but excluding the non-rebated excise duty payable in terms of Section B of Part 2 of Schedule No. 1 on such goods: Provided that the Commissioner may, where such goods are not sold to such merchant wholesalers in Swaziland or are so sold in quantities which he considers to be insignificant in relation to the total quantities of such goods sold in Swaziland, regard any other class or purchaser of such goods as such merchant wholesaler and may make such adjustment 411 to the price charged by the manufacturer to such class of purchaser as he considers reasonable, having regard to the wholesale functions taken over by such manufacturer and such class of purchaser and to such other factors relating to such price as he may deem relevant. (b) For the purpose of assessing the duty on any imported goods entered in terms of item 412.18 of Schedule No. 4 on removal from a duty warehouse and any goods manufactured in Swaziland and specified in items 122.10 to 122.40 of Section B of Part 2 of Schedule No. 1, the value thereof shall be, in a sale between — (i) a manufacturer as seller and an independent bulk buyer or a buyer purchasing at a preferential price or other reseller as purchaser, the highest price (but excluding the excise duty payable in terms of Section B of Part 2 of Schedule No. 1) at which the manufacturer sells such goods at factory to an independent retail dealer, without any deduction except a cash discount not exceeding two and a half per cent, if any, plus the cost of packing and packages and all other expenses incidental to placing the goods on rail for delivery to the purchaser; (ii) a manufacturer and consumer or between a wholesale dealer or retail dealer or other reseller as seller and an independent retail dealer or end consumer as purchaser, the highest price (but excluding the excise duty payable in terms of Section B of Part 2 of Schedule No. 1) at which such goods are sold by any such seller to an end consumer without any deduction except thirty-three and a third per cent, plus the cost of packing and packages and all other expenses incidental to placing the goods on rail for delivery to the purchaser. (c) For the purposes of this subsection the Commissioner may specify — (i) the quantity which shall be deemed to be the usual wholesale quantity; (ii) the packing which shall be deemed to be the usual packing ready for sale in the retail trade; (iii) the cost of packing or packages or any other expenses incidental to placing the goods on rail. (2) (a) For the purpose of assessing the excise duty on any goods specified in Section A of Part 2 of Schedule No. 1, the value thereof shall be the price paid or payable for such goods when sold for home consumption in the ordinary course of trade, in the usual trade packing, where applicable, to any buyers not deemed to be related as specified in section 66(2)(a), plus any non-rebated excise duty payable in terms of Section B of Part 2 of Schedule No. 1, but excluding the non- rebated excise duty payable in terms of Section A of Part 2 of Schedule No. 1 on such goods. (b) For the purpose of paragraph (a) “price paid or payable”, means the total payment made or to be made, either directly or indirectly, by the buyer to or for the benefit of the seller for the goods, but does not include dividends or other payments passing from the buyer to the seller which do not directly relate to the goods. (3) If in the opinion of the Commissioner goods are sold or otherwise disposed of under such conditions that the value thereof cannot be ascertained in terms of subsection (1)(a), (1)(b) or (2), as the case may be, the Commissioner may determine a value, which shall, subject to the right of appeal to the court, be deemed to be correct for the purposes of this Act, and any amount due in terms of any such determination shall remain payable as long as such determination remains in force. (4) The Commissioner may whenever he deems it expedient amend or withdraw any such determination and make a new determination with effect from — (a) the date of first entry of the goods in question; (b) the date of the determination made under subsection (3); (c) the date of such new determination; or (d) the date of such amendment. (5) (a) An appeal against any such determination shall lie to the High Court of Swaziland as established under the High Court Act, 1954. (b) Such appeal shall be prosecuted within a period of 90 days from the date of the determination. (Amended A.5/1991.)

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Value for sales duty purposes.

70. (1) The value for sales duty purposes of any imported goods, other than goods entered in terms of item 709.01 of Schedule No. 7, shall be the customs value thereof, plus fifteen per cent of such value, plus any non-rebated customs duty payable in terms of Part 1 and Part 2 of Schedule No. 1 on such goods, but excluding the sales duty on such goods. (2) The provisions of sections 65, 67 and 71 shall mutatis mutandis apply to the calculation or determination of the value for sales duty purposes of any imported goods. (Amended A.10/1978; A.4/1979; A.2/1985.)

Value of certain specified goods.

71. (1) The value for duty purposes of any goods imported into Swaziland ex customs warehouses or ex bonded warehouses within the district of Maputo shall be calculated or determined in accordance with this Part as if such goods were imported directly into Swaziland from the territory whence they were exported to Maputo. (Amended A.10/1978.) (2) If any motor vehicle is imported by an individual for his own use and not for resale, the Commissioner may, notwithstanding section 65(1) and (4) but with due regard to section 66, determine a value which shall, subject to a right of appeal to the Minister be deemed to be the value for duty purposes of such vehicle: (Amended A.11/1988.) Provided that if any individual who was the owner of and has used the motor vehicle in any territory outside Swaziland imports such vehicle into Swaziland from a territory other than the territory in which it was produced or manufactured for his own use and not for sale, the Commissioner may determine the value for duty purposes of such vehicle as if it’ were imported into Swaziland from the territory in which it was produced or manufactured: Provided further that no period of use of any such motor vehicle outside Swaziland while in the possession of any person normally resident in Swaziland which is less than six months shall be taken into consideration in determining such value.

Value of goods exported.

72. (1) For the purposes of this Act, the value of any goods exported from Swaziland shall be the price of those goods free on board at the place of despatch from Swaziland. which value shall be declared on the bill of entry export. (2) If there is no such free on board price, the value determined by the Commissioner shall be regarded as the value for such purposes. (3) If the value of any exported goods of a single denomination is, according to the provisions of this section — (i) in excess of one lilangeni and includes a fraction of a lilangeni, such value shall be calculated to the nearest lilangeni, an amount in excess of fifty cents being regarded as one lilangeni; (ii) less than one lilangeni, such value shall be calculated as one lilangeni. (Amended A.7/1981.)

Conversion of Prices.

73. The Minister may by regulation determine the rate and time at which the price paid or payable in respect of imported goods shall, if expressed in a foreign currency, be converted into the currency of Swaziland. (Amended A.7/1981.)

Value of goods not liable to ad valorem duty.

74. (1) Subject to subsection (2) the customs value of any imported goods shall be declared by the importer on entry of such goods. (Amended A.2/1985.) (2) The Minister may by regulation exempt from subsection (1) to the extent specified in such regulation any class or kind of such goods or any such goods to which circumstances so specified apply.

74bis. (1) The interpretation of section 65, 66 and 67 shall be subject to the agreement known as the Agreement on Implementation of Article VII of the General Agreement of Tariffs and Trade, concluded at the Advisory Opinions,

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Commentaries, Explanatory Notes, Case Studies and Studies issued under the said Agreement (all of which are hereinafter in this section called the agreement). (2) The Commissioner shall obtain and keep in his office two copies of the agreement and shall effect thereto any amendment of which he is notified by the Secretariat of the General Agreement on Tariffs and Trade. (3) Whenever in any legal proceedings any question arises to the contents of the agreement, or as to the date upon which any amendment was effected thereto in terms of subsection (2) a copy of the agreement or if amended as contemplated in subsection (2) a copy of the agreement as amended, shall be accepted as sufficient evidence of the contents thereof or of the effective date of any amendment thereto as the case may be. (4) The provisions of subsection (1) shall not derogate from the interpretation which would but for that subsection be given to section 65, 66 and 67. (Amended A.2/2985; A.11/1988.)

PART X

REBATES, REFUNDS AND DRAWBACKS OF DUTY

Specific rebates, drawbacks and refunds of duty.

75. (1) Subject to this Act and to any conditions which the Commissioner may impose — (a) any imported goods described in Schedule No. 3 shall be admitted under rebate of any fiscal and customs duty applicable in respect of such goods at the time of entry for home consumption thereof to the extent and for the purpose or use stated in the item of Schedule No. 3 in which they are specified; (Amended K.O-I-C. 17/1976.) (b) any imported goods described in Schedule No. 4 shall be admitted under rebate of any fiscal and customs duties applicable in respect of such goods at the time of entry for home consumption, to the extent stated in, and subject to compliance with the provisions of, the item of Schedule No. 4 in which such goods are specified; (Amended K.O-I-C. 17/1976; A.5/1991.) (c) a drawback or a refund of the ordinary customs duty, anti-dumping duty, countervailing duty and surcharge actually paid on entry for home consumption on any imported goods described in Schedule No. 5 shall, subject to paragraph (f)(i), be paid to the person who paid such duties or any person indicated in the notes to the said Schedule, subject to compliance with the provisions of the item of the said Schedule in which those goods are specified; (Amended K.O-I-C. 17/1976; A.5/1991.) (d) in respect of any excisable goods described in Schedule No. 6, a rebate of the excise duty specified in Part 2 of Schedule No. 1 in respect of such goods at the time of entry for home consumption thereof or a refund of the excise duty actually paid at the time of entry for home consumption shall, subject to paragraph (f)(i), be granted to the extent and in the circumstances stated in the item of Schedule No. 6 in which such goods are specified, subject to compliance with the provisions of the said item and any refund under this paragraph may be paid to the person who paid the duty or any person indicated in the notes to the said Schedule No. 6; (Amended A.5/1991.) (e) in respect of any sales duty goods described in Schedule No. 7 a rebate of the sales duty specified in Part 3 of Schedule No. 1 in respect of such goods at the time of entry for home consumption thereof or a refund of the sales duty paid at the time of entry for home consumption shall be granted to the extent and in the circumstances stated in the item of Schedule No. 7 in which such goods are specified subject to compliance with such item, and any refund under this paragraph may be paid to the person who paid the duty or any person indicated in the Notes to Schedule No. 7; (f) (i) a refund of the ordinary customs duty, anti-dumping duty, countervailing duty or surcharge leviable on any distillate fuel shall be granted to the extent stated in items 533.01 of Schedule No. 5 in which such fuel is specified, subject to compliance with the provisions of the item, or a refund of the excise duty leviable on such fuel shall be granted to the extent stated in item 609.05.10 of Schedule No. 6 in which such fuel is specified, subject to compliance with the provisions of the 414

said item and any refund under this paragraph may be paid to any user who has purchased and used such distillate fuel in accordance with the provisions of the said items of Schedule No. 5 or 6 or to any person indicated in the notes to the said Schedule No. 5 or 6: Provided that no such refund shall be paid to any government, department, administration or any body, institution or authority mentioned in item 401.00 of Schedule No. 4 and item 601.00 of Schedule No. 6, including any university, college, school or other educational institution or any regional or local authority, except as provided in the notes to the said Schedule No.5 or 6; (ii) notwithstanding subparagraph (i), the Commissioner may investigate any such purchase or use to establish whether such fuel has been duly entered or is deemed to have been duly entered in terms of this Act or has been so used and may refuse to allow or pay any such refund if he is not satisfied that such fuel has been so entered or used; (iii) any such distillate fuel purchased shall be deemed to have been used in the order of the dates of such purchases; (iv) the extent of the refund referred to in subparagraph (i) shall be the rate of such refund specified in such item of Schedule No. 5 or 6 in operation on the date of issue of the invoice concerned, referred to in subsection (4bis)(b)(ii); (i) if the extent of such refund is amended and for any reason any liability to repay any refund of duty in respect of any quantity of fuel which the user may incur cannot be assessed or the amount of duty refundable to such user in terms of any item of Schedule No. 5 or 6 cannot be calculated on any quantity of such fuel purchased by such user before such amendment, the quantity of such fuel in respect of any refund which the user is liable to repay, or the quantity used in accordance with any such item for the calculation of the amount refundable to such user, shall be determined by the Commissioner according to the information at his disposal; (Amended A.5/1991.) (g) any refund referred to in subparagraph (f)(i) may be granted and paid to any person entitled to that refund in terms of this Act, by any official of any administration to which the moneys concerned have been rendered available by the Commissioner. (Added A.5/1991.) (1bis) (a) Notwithstanding anything to the contrary in this Act, the Commissioner may subject to such conditions as he may impose, allow in respect of any refund referred to in subsection (1)(f)(i) any person to grant a provisional refund of duty to any registered user of distillate fuel who purchases such fuel from that person. (b) Any provisional refund shall be granted in accordance with an estimate of intended use furnished by such user to the person concerned. (c) The Commissioner may pay to such person or allow him to set off in terms of section 77 against duty for which he is liable, any amount which he granted to such registered user at such times and on furnishing of such particulars as the Commissioner may specify. (d) Any amount paid in error by the Commissioner to such person shall be recoverable from such person as provided in section 76bis. (e) The Commissioner may cancel the said registration of such person if such person claims or receives any amount or payment to which he is not entitled. (f) Any provisional refund granted by such person to such user shall, subject to paragraphs (g), (h) and (i), he deemed to be a refund paid by the Commissioner in terms of subsection (1)(f)(i). (g) (i) Any user who has been granted such a provisional refund shall, in relation to the actual use by him of the fuel concerned, furnish the Commissioner at such times as may be prescribed by regulation, with a declaration in such form and supported by such documents as may be prescribed by regulation. (ii) Such declaration shall be deemed to be an application for a refund referred to in subsection (4bis)(b)(i). (h) (i) If the Commissioner is satisfied after considering the said declaration that the provisional refund granted to the user concerned either exceeds or falls short of any amount refundable in terms of item 533.01 of Schedule No. 5 or

415 item 609.05 of Schedule No. 6, such excess shall be paid by that user upon demand by the Commissioner and any shortfall shall be refunded by the Commissioner to him. (ii) If the user fails to pay the amount demanded in terms of subparagraph (i) such amount shall be recoverable in terms of section 76bis. Any user of fuel who has been granted a provisional refund and who fails to comply with paragraph (g) shall be deemed to have used such fuel for a purpose or use other than the purpose or use stated in the items of Schedule No. 5 or 6 referred to in paragraph (h), and the amount of such refund shall be deemed to be a refund not duly payable to such user and shall be recoverable in terms of section 76bis. (Added A.5/1991.) (2) A rebate of duty in respect of any goods described in Schedule No. 3 shall be allowed only in respect of goods entered for use in — (a) the production or manufacture of goods in the industry and for the purpose specified in the item of the said Schedule in which such goods are specified; (b) a factory, a mine or elsewhere in any other activity which the Commissioner may approve; and (Amended A.11/1988.) (c) such industry in a factory, mine, works or activity which complies with such requirements in respect of quantity of material used or quantity of goods produced or manufactured as the Commissioner may impose. (Amended A.2/1985; A.11/1988.) (3) The Minister may exempt from subsection (2)(b) any goods described in Schedule No. 3 and entered for use in a particular industry, and for the purposes of a factory approved under subsection (21)(b), may limit the application of his approval to the manufacture of one or more specified articles or substances. (4) Notwithstanding section 56 a rebate of any anti-dumping duty specified in Schedule No. 2 in respect of goods entered under any item in Schedule No. 3 or 4 may be granted if it is expressly stated in such item that the extent of the rebate includes anti-dumping duty. (4bis) (a) No person shall be entitled to a refund of customs or excise duty on any distillate fuel in terms of the provisions of item 533.01 of Schedule No. 5 or item 609.05.10 of Schedule No. 6 unless he is registered as a user of such fuel with the Commissioner. (b) (i) Any application for refund of such duty shall be in such form and shall declare such particulars and be supported by such documents and shall be for such quantities and for such periods as may be prescribed by regulation. (ii) Any seller of such fuel shall furnish any such user with an invoice reflecting the particulars, and shall keep a copy of such invoice for such time, as may be prescribed by regulation. (c) Any registered user shall complete and keep such books, accounts and documents and furnish at such times such particulars of the vehicle, machinery or other equipment in which such fuel is used or any other particulars as may be prescribed by regulation. (d) (i) Notwithstanding anything to the contrary in this Act, any user of such fuel who has been granted such refund and who fails to forthwith furnish an officer at his request with the books, accounts and documents required by regulation to be completed and kept in respect of the use of any distillate fuel purchased by him shall be deemed to have used such distillate fuel for a purpose or use other than a purpose or use stated in the items of Schedule No. 5 or 6 referred to in paragraph (a) and the use declared in the relevant application for refund. (ii) A user referred to in subparagraph (i) shall pay on demand to the Commissioner the full amount of any refund granted to him in respect of such fuel or such portion thereof as the Commissioner may determine, during a period of two years prior to the date of such request by such officer, failing which such amount or such portion shall be recoverable in terms of this Act as if it were the duty concerned. (e) The Commissioner may refuse to register any person mentioned in paragraph (a) or cancel his registration if such person fails to complete, keep or furnish such accounts, books or documents as may be prescribed by regulation, or claims or receives any refund or payment to which he is not entitled in terms of the said items of Schedule No. 5 or 6.

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(Added A.7/1981; amended A.11/1988; A.5/1991.) (5) (a) In addition to any liability for duty incurred by any person under any other provision of this Act, the person who enters any goods for use by him under rebate of duty or any person on whose behalf any goods are so entered, shall, subject to the provisions of subsections (6) and (8) of this section and section 45, be liable for the duty on all goods so entered which have not been used or which have been disposed of otherwise than in accordance with the provisions of this section and of the item under which they were so entered, as if such rebate of duty did not apply to such goods and such person shall pay such duty on demand by the Commissioner: Provided that the Commissioner may, if such goods were used in accordance with any other item relating to rebate of duty, accept duty on such goods as if they were entered under such other item: Provided further that the Commissioner may, in his discretion, permit any duty paid on entry of goods under rebate to the deduction from any duty from which any person becomes liable in terms of this subsection. (b) The Controller may at any time take stock of goods entered for home consumption and stored on any premises registered by virtue of subsection (10), and duty shall, subject to the provisions of paragraph (a), be paid forthwith on demand upon any deficiency detected. (Added A.7/1981.) (c) If the stock is found to be greater than the quantity which should be on such premises, the excess shall be debited to stock. (Added A.7/1981.) (6) Any person to whom any distillate fuel or residual fuel oil has been supplied from stocks which have been entered under rebate of duty for a purpose stated in the item under which such distillate fuel or residual fuel oil was so entered, and who applies such distillate fuel or residual fuel or any portion thereof for any other purpose, shall be guilty of an offence and shall, notwithstanding the provisions of subsection (5) be liable for the duty to the extent of the rebate allowed on entry for home consumption of such distillate fuel or residual fuel oil on the full quantity of the distillate fuel or residual fuel oil so supplied to him or on such portion thereof as the Commissioner may determine: (Amended A.11/1988.) Provided that if the duty in question has after such entry under rebate been increased, the extent of such rebate shall be deemed to be — (a) the difference between the duty actually paid on entry for home consumption and such increased duty; or (b) such increased duty if no duty was paid on entry for home consumption. (Added A.4/1979; amended A.11/1988.) (7) The Commissioner may, on such conditions as he may impose, permit any person who has entered any goods under rebate of duty under this section to use or dispose of any such goods otherwise than in accordance with this section and of the item under which such goods were so entered, or to use or dispose of any such goods in accordance with any other item to which this section relates, and such person shall thereupon be liable for duty on the goods as if such rebate of duty did not apply or as if they were entered under such other item to which this section relates, as the case may be, and such person shall pay such duty on demand by the Commissioner: Provided that in respect of any such goods which are specified in any item of Schedule No. 3, 4, 6 or 7, the Commissioner may subject to the provisions of or the Notes applicable to the item in which such goods are specified and to any conditions which he may impose in each case, exempt any such goods from the whole or any portion of the duty payable thereon under this subsection on the ground of the period or the extent of use in accordance with the item under which such goods were entered, or on any other ground which he considers reasonable. (8) Any duty paid on any such goods on first entry thereof under rebate of duty shall be deemed to have been paid in respect of any duty payable in accordance with subsection (7) in respect of such goods. (9) No drawback or refund shall be paid in respect of any goods specified in any item of Schedule No. 5, 6, or 7 if such goods have been used or disposed of otherwise than in accordance with this section and the item in question or if any such item has not been complied with in respect of such goods: Provided that the Commissioner may, in respect of any class or kind of goods specified in any item of Part 1 of Schedule No. 5 and used in the manufacture of any goods marketed in Swaziland, pay any drawbacks to the extent stated in such item, where goods of comparable class, kind, quality and quantity and manufactured or produced in Swaziland have been used in the manufacture of any goods exported. (Amended A.4/1791.)

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(9bis) Any person to whom a refund of customs or excise duty has been granted on any distillate fuel in terms of item 533.01 of Schedule No. 5 or item 609.05.10 of Schedule No. 6 as the case may be, and who has disposed of such fuel or has applied such fuel or any portion thereof for any purpose or use otherwise than in accordance with the provisions of such items and the use declared in the relevant application for refund, shall pay on demand to the Commissioner the full amount of any refund granted to him in respect of such fuel or such portion thereof as the Commissioner may determine, during such period of two years as the Commissioner may determine, failing which such amount or such portion shall be recoverable in terms of this Act as if it were the duty concerned. (Added A.5/1991.) (10) If the tariff heading or sub-heading or the tariff item or sub-item or the sales duty item or sub-item under which any goods are classified in Schedule No. 1 is expressly quoted in any item of Schedule No. 3, 4, 5, 6 or 7 in which such goods are specified, the goods so specified in such item of Schedule No. 3, 4, 5, 6 or 7 shall be deemed not to include goods which are not classified under such tariff heading or sub-heading, tariff item or sub-item, or sales duty item or sub-item. (11) Any goods entered for use under rebate of duty under this section shall, for the purposes of this Act, be deemed to be entered for home consumption, but no entry in respect of any such goods described in Schedule No. 3, 4 or 7 shall be valid unless the number of the tariff heading and sub-heading or sales duty item and sub-item under which such goods are classified in Schedule No. 1 and the number of the item of Schedule No. 3, 4 or 7 in which such goods are specified are both declared on such entry and the industry in which and the purpose for which such goods are to be used, as specified in such item, are declared on such entry: Provided that the Commissioner may exempt entries in respect of any class or kind of goods from any of the requirements of this subsection. (12) (a) No goods may be entered or acquired under rebate of duty under this section or the regulations until the person so entering or acquiring them has furnished such security as the Commissioner may require and has complied with such other conditions (including registration with the Commissioner of his premises and plant) as may be prescribed in respect of goods specified in any item of Schedule No. 3, 4, 6 or 7: Provided the Commissioner may, subject to such conditions as he may in each case impose, exempt with or without retrospective effect, any such person from the provisions of this subsection. (b) Application for such exemption for the purpose of applying for a refund of duty shall be made to the Commissioner within six months from any date specified in section 39(5)(a), (b) or (c), as the circumstances may require. (c) For the purposes of the application of section 39(5) to any such exemption — (i) any bill of entry passed in relation to goods in respect of which exemption is granted under paragraph (a) of this subsection, shall be deemed to have been passed in error by reason of duty having been paid on goods intended for purposes or use under rebate of duty under section 75; (ii) the goods concerned shall be deemed to have qualified at the time duty was paid on such goods in all respects for rebate; and (iii) the duty paid on the goods concerned, shall be deemed to have been paid on the date on which the exemption referred to in subparagraph (i) was granted. (Amended A.5/1991.) (13) Notwithstanding anything to the contrary in this Act, the Commissioner may, in respect of Schedule 5, 6 or 7, for the purpose of calculating the amount of duty refundable on any imported, excisable or sales duty goods used in the manufacture, reconditioning, mixing or blending of any goods exported or marketed in Swaziland, determine the quantity of such exported goods or such goods marketed in Swaziland which shall be deemed to have been produced, reconditioned, mixed or blended from a given quantity of such imported, excisable or sales duty goods or the quantity of such imported, excisable or sales duty goods which shall be deemed to have been used in the production, reconditioning, mixing or blending of a given quantity of such exported goods or such goods marketed in Swaziland. (Amended A.5/1991.) (14) No goods manufactured from excisable goods under rebate of duty specified in any item of Schedule No. 6 shall be used in the place of such excisable goods in the manufacture of any other goods if a rebate of duty to a lesser extent has been specified in any item of such Schedule in respect of such excisable goods when used in the manufacture of such other goods.

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(15) If the Commissioner is of the opinion that any goods, not being a spirituous beverage, manufactured from spirits under rebate of excise duty in terms of a formula approved by him under any item of Schedule No. 6 are used as a beverage he may forthwith revoke his approval of such formula. (16) No refund or drawback of duty shall be paid by the Commissioner under this section unless an application therefor, duly completed and supported by the necessary documents and other evidence to prove that such refund or drawback is due under this section, is received by the department in — (a) the case of goods exported, where the goods were exported — (i) by post within a period of six months from the date on which such goods were posted; (ii) in any other manner within a period of six months from the date of entry of such goods for export; and (b) (i) in respect of any refund referred to in subsection (1)(f), within a period of six months from the last date of any period of use of any distillate fuel to which the application for such refund relates: Provided that no refund shall be paid if the quantity of distillate fuel to which the application for such refund relates is less than such refund relates is less than such quantity as may be prescribed; and (ii) in all other cases, within a period of six months from the date on which such refund first becomes due. (Amended A.2/1985; A.5/1991.) (16bis) (a) Subject to the concurrence of the Minister, the Minister for Commerce, Industry and Tourism may at any time after a permit by virtue of which goods may, in terms of any item of Schedule 3,4 or 6, be entered under rebate of duty has been refused, but not later than two years after duty was paid on those goods, issue a permit authorising entry of those goods under rebate of duty in accordance with the provisions of the item concerned if, with due regard to any facts which became known after such a permit has been refused, he is satisfied that he would have issued such a permit if those facts were then known. (b) For the purposes of subsections 39(3), 39(4) and 39(5) — (i) any bill of entry passed in relation to goods in respect of which a permit is issued under paragraph (a) shall be deemed to have been passed in error by reason of duty having been paid on goods intended for purposes or use under rebate of duty under this section; (ii) the .goods in respect of which such a permit is issued shall be deemed to have qualified at the time duty was paid on such goods in all respects for rebate; and (iii) the duty paid on the goods concerned shall be deemed to have been paid on the date on which the permit referred to in paragraph (a) was issued. (Added A/11/1988; amended A.5/1991.) (16ter) (a) Subject to the provisions of subsection (16bis), any authorised official, or the Commissioner, may in respect of goods which may, in terms of any item of Schedule No. 3, 4, 5 or 6, be entered under rebate of duty or be subject to a drawback or a refund of duty, issue, subject to such conditions as such authorised official or the Commissioner may specify, with or without retrospective effect, a permit or certificate authorising entry of those goods under rebate of duty, or authorising a drawback or a refund of duty in accordance with the provisions of the item concerned: Provided the Commissioner is satisfied in respect of the goods concerned, where the permit or certificate concerned is issued with retrospective effect, that the provisions of such item and such conditions have been complied with. (b) Subsection (16bis)(b) shall apply mutatis mutandis in respect of any permit or certificate referred to in paragraph (a). (c) Application for such permit or certificate shall be made to the authorised official referred to in paragraph (a) or the Commissioner within six months from any date specified in section 39(5)(a), (b) or (c), as the circumstances may require. (Added A.5/1991.) (17) (a) The Minister may from time to time by notice in the Gazette amend Schedule No. 3, 4, 5, 6 or 7 and any such amendment may be or retrospective effect from such date as may be specified in such notice. 419

(b) An amendment made under paragraph (a) which — (i) repeals any existing provision in Schedule No. 5 or which excludes any goods from any existing provision of that Schedule, shall not apply in respect of goods, excluding distillate fuels referred to in item 533.01 of Schedule No. 5 which were imported prior to the date of the relevant notice in the Gazette; and (ii) embodies any additional provision in that Schedule applies any existing provision of that Schedule in respect of additional goods, shall not except in so far as the Commissioner so directs and subject to such conditions as he may determine, apply in respect of goods which were imported prior to the date of the relevant notice in the Gazette. (Amended A.7/1981; A.5/1991.) (18) The Commissioner may refuse to accept an entry under rebate or any application for drawback or refund under any item of Schedule No. 3, 4, 5, 6 or 7 from any person who has persistently contravened or failed to comply with this Act or has committed an offence referred to in sections 80, 83, 84, 85 or 86 and he may cancel any registration under this Act of such person or suspend any such registration for such period as he deems fit. (19) Subject to the proviso to section 18(8) and items 412.07, 412.08, 412.09, 531.00, 532.00, 608.01, 608.02, 608.03, 608.04, 615.01, 615.02, 615.03, 707.01, 707.02 and 707.03 of Schedules Nos. 4, 5, 6 and 7, no rebate or refund of duty in respect of any loss or deficiency of any nature of any goods shall be allowed, but the Commissioner may allow the deduction from the dutiable quantity of the undermentioned goods of the quantity equal to the percentage stated below in each case, namely— (Amended A.5/1991.) (a) wine spirits (ethyl alcohol) manufactured in Swaziland and entered for storage in a customs and excise storage warehouse, excluding spirits specified in paragraph (b)(bis), 1,5 per cent of the quantity so entered; (Amended A.11/1988.) (b) spirits (ethyl alcohol), other than wine spirits, manufactured in Swaziland, 1,5 per cent of the quantity so manufactured and entered for use in making spirituous beverages; (b)bis unpacked excisable spirits intended for export and which are removed in bond from a customs and excise manufacturing warehouse for temporary storage in a customs and excise warehouse approved for that purpose, the percentage, but not exceeding 1.25 per cent of the quantity so removed, as may in the opinion of the Commissioner represent a loss incurred while the spirits in question are so removed and stored as the Commissioner may determine; (Added A.11/1988.) (c) wine manufactured in Swaziland, 0,5 per cent of the quantity so manufactured on which duty is paid; (c)bis fermented apple, pear or orange beverage manufactured in Swaziland, 0.5 per cent of the quantity so manufactured on which duty is paid; (Added A.4/1979.) (d) imported crude petroleum naphtha for use in the refining of petroleum products, or imported or excisable petrol, a percentage equal to the full net loss incurred but not exceeding 0.25 of any quantity entered for storage and stored in a duty storage warehouse during such period as the Commissioner may determine; (Amended A.5/1991.) (e) imported petroleum naphtha entered for use as fuel in the manufacture of ammonia such percentage, but not exceeding 0.25, for any quantity so entered as may in the opinion of the Commissioner represent a loss by evaporation; (Added A.10/1978; amended A.11/1988; A.5/1991.) (f) distillate fuels entered for storage and stored in a duty storage warehouse, a percentage equal to the full net loss incurred but not exceeding 0.15 of any quantity so entered and stored in such warehouse during such period as the Commissioner may determine. (Added A.5/1991.) (20) No person shall, without the permission of the Commissioner, divert any goods entered under rebate of duty under any item of Schedule No. 3, 4, 6 or 7 for export for the purpose of claiming a drawback or refund of duty under any item of Schedule No. 5, 6 or 7 to a destination other than the destination declared on such entry or deliver such goods or cause such goods to be delivered in Swaziland otherwise than in accordance with this Act and, in the case of goods entered under rebate of duty, otherwise than to the person who entered the goods or on whose behalf they were entered.

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(21) If any goods to which this section relates are used or disposed of, or dealt with or in, contrary to this Act the whole consignment entered or transferred for use in terms of this section of which such goods form part or formed part, or any goods manufactured therefrom shall be liable to forfeiture. (22) Except with the permission of the Commissioner which shall only be granted in circumstances which he considers to be exceptional and subject to such conditions as he may impose in each case, any goods entered under any item of Schedule No. 3, 4, 6 or 7 for manufacturing purposes or for such other purposes as may be specified in any regulation shall be used for the purpose specified in such item at the time of such entry or such other purpose within five years from the date of such entry.

General refund in respect of imported or excisable goods.

76. (1) No refund of any duty or other charge in respect of imported goods, excisable goods, sales duty goods or surcharge goods, other than a refund provided for under section 75 or 77, shall be paid or granted except in accordance with the provisions of this section and any regulations. (Amended A.5/1991.) (2) The Commissioner shall, subject to subsection (4), consider any application for a refund or payment from any applicant who contends that he has paid any duty or other charge for which he was not liable or that he is entitled to any payment under this Act by reason of: (a) an error in determining an assessment or calculating the amount thereof; (b) the duty having been assessed a value higher than the value for duty purposes; (c) a determination under section 46 or incorrect tariff classification; (Amended A.1/1981.) (d) the goods concerned having been damaged, destroyed or irrecoverably lost in circumstances beyond his control prior to the release thereof for home consumption; (Amended A.2/1985.) (f) the substitution of any bill of entry in terms of section 39(3); (Amended A.2/2985.) (g) the duty having been reduced or withdrawn as provided for in section 47(3) and (4). (Added A.5/1991.) (Amended A.10/1978.) (3) Except with the permission of the Commissioner, any application for a refund under this section shall not relate to more than one bill of entry or other document in respect of which the alleged over-payment was made. (4) An application for a refund or payment under this section shall not be considered by the Commissioner unless it is duly completed and supported by the necessary documents and other evidence to prove that such refund or payment is due under this section, and is received by the Controller, within a period of two years — (a) from the date of entry for home consumption as provided in section 44(2), of the goods to which the application relates; or (Amended A.5/1991.) (a)bis from the date on which the charge to which the application relates was paid; or (Added A.5/1991.) (b) in the case where a determination of a tariff heading, tariff subheading or item referred to in section 46(12)(a) or of a value referred to in section 65(4)(a) is, under section 46(12)(d), or section 65(5), as the case may be, amended with retrospective effect from a date before or on the date on which the duty to which the application relates was paid, or any such determination is, under the said section 46(12)(d) or section 65(5), as the case may be, withdrawn with such retrospective effect, and anew determination is thereunder made with effect from such withdrawal, from the date on which such amendment is effected or such new determination is made or, if such amendment or new determination is published by notice in the Gazette, the date on which such amendment or new determination is so published; or (c) in the case where any Schedule is amended with such retrospective effect, from the date on which such amendment is published by notice in the Gazette: Provided that the Commissioner may, in such circumstances as he may consider exceptional, consider any such application after the expiry of such period. (Amended A.11/1988.) (5) If, after considering any application for a refund or payment in terms of this section, the Commissioner is satisfied that the applicant is entitled to any such refund or payment, he may pay him the amount due to him:

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Provided that no refund shall be made under this section if, in the case of goods imported by post, the amount thereof is less than fifty cents or, in the case of goods imported in any other manner, less than five rand or, in the case of excisable goods or sales duty goods manufactured in Swaziland, less than two rand, unless the Commissioner is satisfied that exceptional circumstances exist which warrant such refund. (6) (Repealed A.2/1985.)

Recovery of certain amounts not duly payable.

76bis. (1) If the Commissioner, acting under the provisions of section 75 or 76, pays to any person by way of a refund or drawback any amount which was not duly payable to that person under those provisions or which was in excess of the amount due to that person by way of a refund or drawback under those provisions, that amount or the excess, as the case may be, shall be repaid by the person concerned to the Commissioner upon demand, failing which it shall be recoverable in terms of this Act as if it were the duty or charge concerned or part of such duty or charge, as the case may be. (2) Subsection (1) shall apply mutatis mutandis to any amount set off in terms of section 77(1). (Added A.5/1991.)

Over-payment in respect of excisable goods and sales duty goods.

77. (1) Any amount due to a licensee of a duty warehouse who, in terms of the regulations, is permitted to pay excise duty or sales duty monthly or quarterly, in respect of such duty paid by him for which he was not liable or any provisional refund granted by him in terms of section 75(1bis) or which is refundable to him in terms of item 534.00 of Schedule No. 5 or any item of Schedule 6 or 7 may, at any time within a period of two years from the date on which such amount first becomes due, be set off against any amount for which such licensee subsequently becomes liable in respect of excise duty or sales duty: Provided the accounts or bills of entry submitted by such licensee in respect of the payment of any amount against which any amount so due to him has been set off are accompanied by a full statement by such licensee, supported by a certificate by an officer, giving full particulars of the excise duty or sales duty so paid and a full account of the circumstances under which the payment thereof took place and by such documentary evidence as the Commissioner may in each case require. (Amended A.2/1985; A.5/1991.) (2) If the set-off of any amount is not allowed by the Commissioner in terms of subsection (1) such amount shall be re-debited to the account of such licensee. (3) With the permission of the Commissioner and subject to such conditions as he may impose, any amount of sales duty or excise duty specified in Section B of Part 2 of Schedule No. 1 paid by the licensee of a duty warehouse licensed in terms of this Act in respect of sales duty goods or excisable goods specified in Section B of Part 2 of Schedule No. 1 sold by him to any person whose premises are not so licensed and who has exported such goods or supplied them to any other person entitled to acquire such goods under rebate of sales duty or excise duty specified in Section B of Part 2 of Schedule No. 1, may be set off against any amount for which such licensee subsequently becomes liable in respect of sales duty or excise duty specified in Section B of Part 2 of Schedule No. 1: Provided proof to the satisfaction of the Commissioner of such export or supply under rebate of duty and the identity of the sales duty goods or excisable goods specified in Section B of Part 2 of Schedule No. 1 so exported or supplied is submitted by such licensee, together with such documentary proof as the Commissioner may in each case require regarding the sale of such goods by the licensee. (Amended A.5/1991.)

PART XI

PENAL PROVISIONS

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Offences not expressly mentioned.

78. (1) Any person who contravenes any provision of this Act or who fails to comply with any such provision with which it is his duty to comply shall, even where the contravention or failure is not elsewhere declared an offence, be guilty of an offence. (2) Any person guilty of an offence under this Act shall, where no punishment is expressly provided for such offence, be liable on conviction to a fine not exceeding one thousand emalangeni or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or imprisonment not exceeding six months, or both. (Amended A.11/1988.) (3) Any person who is convicted of an offence referred to in subsection (2) within a period of three years after he was convicted of any offence referred to in that subsection shall be liable to a fine not exceeding one thousand five hundred emalangeni or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or imprisonment not exceeding nine months, or both. (Amended A.11/1988.)

Less serious offences and their punishment.

79. (1) Any person who — (a) supplies the means or materials for or assists in establishing, repairing, maintaining or working any still being made or made, imported, used, set up or in the possession or custody of any person without lawful authority; (b) is found without lawful excuse in any place where distillation is illegally carried on; (c) refuses or fails to comply with the lawful requirements of an officer or refuses or fails to answer to the best of his power any question which an officer in the exercise of his functions has put to him; (d) falsely holds himself out to be an officer; (e) resists or hinders an officer in the performance of his functions under this Act; or (f) rescues any person apprehended for any offence under this Act, or prevents the apprehension of any person who has committed any such offence; shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand Emalangeni or imprisonment not exceeding six months, or both. (Amended A.11/1988.) (2) A person who is convicted of an offence referred to in subsection (1) within a period of three years after he was convicted of any offence referred to in that subsection shall be liable to a fine not exceeding one thousand five hundred emalangeni or imprisonment not exceeding nine months, or both. (Amended A.11/1988.)

Serious offences and their punishment.

80. (1) A person who — (a) has upon his premises or in his custody or under his control, or purchases, sells or otherwise disposes of any illicit goods, knowing them to be illicit goods; (b) not being a licensed manufacturer or dealer, without lawful authority has in his possession or custody or under his control any partly manufactured, excisable goods or sales duty goods or any such goods upon which duty has not been paid; (c) removes or assists in or permits the removal of goods in contravention of this Act; (d) deodorizes, clarifies or, prior to sale, reduces the strength of methylated spirits to a strength below a strength of 91,4 per cent absolute alcohol by volume, or prepares or sells or offers for sale or consumption as a beverage any preparation containing methylated spirits or spirits recovered from methylated spirits; (e) removes or breaks or interferes with any lock, meter, guage, rod, seal, mark or fastening placed or fitted to any warehouse, vessel, package, container or other article, place or plant by an officer under this Act;

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(f) damages, destroys or disposes of any goods to prevent the securing or seizure thereof under this Act by any officer or other person authorized to secure or seize them or takes back any goods which are being detained or have been seized; (g) contravenes section 54(8); (h) without lawful excuse (the proof of which shall lie upon him), brings into Swaziland or has in his possession any blank or incomplete invoice or any bill head or other similar document capable of being filled up and used as an invoice for goods from outside Swaziland; (Amended A.11/1988.) (i) claims or receives any rebate, drawback, refund or payment to which he knows he is not entitled under this Act; (Amended A.5/1991.) (j) claims any rebate, drawback, refund or payment to which he knows he is not entitled under this Act or fails forthwith to repay to the controller any duty which has been refunded or rebated under this Act and in respect of which he has been compensated by any other person; (k) not being authorized so to do, gives or promises to give, directly or indirectly, any reward to an officer or any person employed by the Government, in respect of the performance or non-performance by any such officer or person of his duty or employment under this Act or agrees with or proposes to any such officer or person to do or permit anything in contravention or evasion of this Act; (l) being an officer or a person employed by the Government, demands or receives except from or through the Government any reward in respect of the performance or non-performance of his duty or employment under this Act, or by any wilful act, neglect or default does or permits or agrees to do or permit anything in contravention or evasion of this Act; (m) attempts to commit or assists in committing any offence mentioned in this section; (n) from any goods made from or containing excisable goods extracts or recovers such excisable goods in contravention of this Act; (o) contravenes the provisions of section 16(13), 16bis(9), 18(7), 33bis(4) 60(1), 63(1), 75(9bis), 75(20) or 114(2bis); or (Amended A.11/1998; A.5/1991.) (p) fails to comply with any conditions determined under section 106(2); (Added A.11/1988.) shall be guilty of an offence and liable on conviction to a fine not exceeding two thousand five hundred emalangeni or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or imprisonment not exceeding twelve months, or both. (Amended A.11/1988.) (2) If any person is charged with a contravention of subsection (1)(a) he shall, until the contrary is proved, be presumed to have known that the goods in question were illicit goods. (3) When any person is charged with a contravention of subsection (1)(i) he shall, until the contrary is proved, be presumed to have known that he was not entitled to the rebate, drawback, refund or payment concerned. (Added A.5/1991.)

Non-declaration of goods.

81. Any person who fails to declare any dutiable goods or goods the importation or exportation of which is prohibited or restricted under any law and which he has upon his person or in his possession, or makes any statement for customs or excise purposes as to any dutiable goods or prohibited or restricted goods upon his person or in his possession from which any dutiable goods or prohibited or restricted goods are omitted, shall, if any such goods are discovered to be or to have been upon his person or in his possession at the time of the failure, or of the statement, be guilty of an offence and liable on conviction to a fine of five thousand emalangeni or treble the value of the goods in question, whichever is the greater, or imprisonment for two years, or to both, and the goods in question and any other goods contained in the same package as well as the package itself shall be liable to forfeiture. (Amended A.4/1979; A.11/1988)

82. (Repealed A.5/1991.).

Irregular dealing with or in goods.

83. Any person who —

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(a) deals or assists in dealing with any goods contrary to this Act; (b) knowingly has in his possession any goods liable to forfeiture under this Act; or (c) makes or attempts to make any arrangement with a supplier, manufacturer, exporter or seller of goods imported or to be imported into or manufactured or to be manufactured in Swaziland or with any agent of any such supplier, manufacturer, exporter or seller, regarding a matter to which this Act relates, with the object of defeating or evading this Act, shall be guilty of an offence and liable on conviction to a fine not exceeding five thousand emalangeni or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or imprisonment not exceeding two years, or both, and the goods in respect of which such offence was committed shall be liable to forfeiture. (Amended A.11/1988.)

False document and declaration.

84. (1) Any person who makes a false statement in connexion with any matter dealt with in this Act, or who makes use for the purposes of this Act of a declaration or document containing any such statement shall, unless he proves that he was ignorant of the falsity thereof and that such ignorance was not due to negligence on his part, be guilty of an offence and liable on conviction to a fine not exceeding five thousand emalangeni or treble the value of the goods to which such statement, declaration or document relates, whichever is the greater, or imprisonment not exceeding two years, or both, and the goods in respect of which such false statement was made or such false declaration or document was used shall be liable to forfeiture. (Amended A.11/1988.) (2) For the purposes of subsection (1), any invoice or other document relating to any denomination, description, class, grade, or quantity of goods shall be deemed to contain a false statement if the domestic value of the price charged by the exporter or any value, price, freight, duty, tax, drawback, refund, rebate, remission or other information whatsoever declared therein which has a bearing on value for the purpose of payment of any duty or on classification in terms of any Schedule or on anti-dumping duty or on extent of rebate, refund or drawback of duty — (a) is not, except insofar as may be otherwise specified, exclusively related to goods of the denomination, description, class, grade or quantity declared in such invoice or document; (b) is influenced, adjusted or amended as a result of any separate transaction, arrangement, agreement or other consideration of any nature whatsoever, particulars of which are not specified in such invoice or document; (c) represents any average, adjustment or amendment, particulars of which are not disclosed in such invoice or document, of such values, prices, commissions, discounts, costs, charges, expenses, royalties, freight duties, taxes, drawbacks, refunds, rebates, remissions or other information in respect of goods of the same or of different denominations, descriptions, classes, grades or quantities supplied by the same suppliers.

Beer of higher or lower density than indicated by label or container.

85. Any manufacturer of beer in whose duty warehouse or on whose delivery vehicle beer packed for sale is found of a relative density before fermentation higher or lower than such density specified in the sub-item of tariff item 104.10 registered in terms of section 34(4) in relation to beer of the name indicated on the container of beer so found shall be guilty of an offence and liable on conviction to a fine not exceeding five thousand emalangeni or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or imprisonment not exceeding two years, or both, and the goods in respect of which the offence was committed shall be liable to forfeiture. (Amended A.11/1988; A.5/1991.)

Certain specified offences.

86. A person who — (a) fails to advise the controller of the receipt of any amended prescribed invoice or any credit note or debit note or of any change in the circumstances or particulars of whatever nature as declared in any prescribed invoice or in any other document or of any refund of money or deferred or secret discount, commission or other credit or debit which relates to any goods and which would increase the duty on such goods or exclude them from any rebate or refund or other privilege under this Act;

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(b) fails to declare in or omits from any prescribed invoice any particulars (including value and origin) in respect of goods to which such invoice relates and which would increase the duty on such goods or exclude them from any rebate or refund or other privilege under this Act; (c) applies money or credit received by or due to him as a commission in such manner as to avoid or evade any duty or obligation or to obtain any rebate or other privilege in respect of any goods under this Act; (d) issues two or more different prescribed invoices or certificates in respect of the same goods or fails to issue an amended prescribed invoice or certificate where particulars declared in any prescribed invoice or certificate in respect of any goods have changed in any manner whatsoever; (e) makes or attempts to make or assists in making or attempting to make any arrangement of whatever nature with any person inside or outside Swaziland in connexion with any goods imported or to be imported into Swaziland with the object of or having the effect of defeating or evading any agreement entered into between Swaziland and any exporting territory which provides for the restriction of or control over the export to Swaziland of any goods in any manner or any restriction of or control over the export of any goods to Swaziland imposed by any exporting territory in any manner by arrangement with or at the instance or suggestion of or with the approval of the Government; (f) produces to the controller, for the purposes of section 38(4), any sample which is not a sample of the goods of which it purports to be a sample or who so produces any copy of any invoice or other document or of any blueprint, illustration, drawing, plan or illustrated and descriptive literature which does not relate to the goods to which it purports to relate or which is incorrect or incomplete or misleading in any respect; (g) allocates the same identification number, code, description, character or other mark referred to in section 40(2) to goods of different classes or kinds, or allocates more than one such identification number, code, description, character or other mark to goods of the same class or kind, or who quotes or reproduces any such identification number, code, description, character or other mark in any invoice or document relating to goods to which such number, code, description, character or other mark has not been allocated; or (h) contravenes or fails to comply with section 101 or any regulation made in terms of section 73 or 101; shall be guilty of an offence and liable on conviction to a fine not exceeding five thousand emalangeni or treble the value of the goods in respect of which such offence was committed, whichever is the greater, or imprisonment not exceeding two years, or both, and the goods in respect of which such offence was committed shall be liable to forfeiture. (Amended A.11/1988.)

Goods irregularly dealt with liable to forfeiture.

87. (1) Any goods imported, exported, manufactured, warehoused, removed or otherwise dealt with contrary to this Act or in respect of which any offence under this Act has been committed (including the containers of any such goods) or any plant used contrary to this Act in the manufacture of any goods shall be liable to forfeiture wheresoever and in the possession of whomsoever found: Provided that forfeiture shall not affect liability to any other penalty or punishment under this Act or any other law, or entitle any person to a refund of any duty or charge paid in respect of such goods. (2) Any vehicle used in the removal or carriage of any goods liable to forfeiture under this Act shall be likewise liable to forfeiture unless it is shown that such vehicle was used without the consent or knowledge of the owner of such vehicle or other person lawfully in possession or charge thereof. (3) Any vehicle in which goods liable to forfeiture under this Act are used as fuel or in any other manner shall likewise be liable to forfeiture unless it is shown that such goods were so used without the consent or knowledge of the owner of such vehicle or other person lawfully in possession or charge thereof.

Seizure.

88. (1) (a) An officer, magistrate or member of the police force may detain any vehicle, plant, material or goods at any place for the purpose of establishing whether that vehicle, plant, material or goods are liable to forfeiture under this Act.

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(b) Such vehicle, plant, material or goods may be so detained where they are found or shall be removed to and stored at a place of security determined by such officer, magistrate or member of the police force, at the cost, risk and expense of the owner, importer, exporter, manufacturer or the person in whose possession or on whose premises they are found, as the case may be. (c) If such vehicle, plant, material or goods are liable to forfeiture under this Act the Commissioner may in his discretion seize the vehicle, plant, material or goods. (d) The Commissioner may in his discretion seize any other vehicle, plant, material or goods liable to forfeiture under this Act. (Amended A.5/1991.) (2) (a) (i) If any goods liable to forfeiture under this Act cannot readily be found, the Commissioner may, notwithstanding anything to the contrary in this Act, demand from any person who imported, exported, manufactured, warehoused, removed or otherwise dealt with such goods contrary to the provisions of this Act or committed any offence under this Act rendering such goods liable to forfeiture, payment of an amount equal to the value for duty purposes or the export value of such goods plus any unpaid duty thereon, as the case may be. (ii) For the purposes of subparagraph (i) the value for duty purposes shall be calculated in terms of the provisions of this Act relating to such value where or not the goods in question are subject to ad valorem duty or to a duty calculated according to a unit of quantity, volume or other measurement, as the case may be. (Amended A.5/1991.) (b) If the amount demanded is not paid within a period of fourteen days after he demand for payment was made it may be recovered terms of the provisions of this Act as if it were a forfeiture incurred under this Act. (c) The provisions of this Act shall apply mutatis mutandis in respect of any amount paid to the Commissioner or recovered in terms of this subsection, as if such amount were the goods in question and as if such amount had been seized under subsection (1). (Amended A.4/1791.)

Notice of claim by owner in respect of seized goods.

89. (1) Any vehicle, plant, material or goods which have been seized under this Act shall be deemed to be condemned and forfeited and may be disposed of under section 90’ unless the person from whom such vehicle, plant, material or goods have been seized or the owner thereof or his authorized agent gives notice in writing within one month after the date of such seizure to the person seizing or to the Commissioner or to the controller in the area where the seizure was made that he claims or intends to claim such vehicle, plant, material or goods under this section. (2) If no such notice is given, no legal proceedings whatsoever shall thereafter be instituted against the Government, the Minister, the Commissioner or any officer, based merely upon the seizure of such vehicle, plant, material or goods. (3) If a notice has been given under subsection (1) the person giving such notice shall, within ninety days of the date thereof, institute proceedings in a court of competent jurisdiction for release of the said vehicle, plant, material or goods: Provided that he shall not, except with the consent of the Commissioner institute such proceedings within one month of the date of such notice.

Disposal of seized goods.

90. (1) Anything seized as being liable to forfeiture under this Act shall forthwith be delivered to the controller at the customs, excise and sales duty office nearest to the place where it was seized or it may be secured by the controller by sealing, marking, locking, fastening or otherwise securing or impounding it on the premises where it is found or by removing it to a place of security determined by the controller. (2) The controller shall, after condemnation thereof, cause the thing seized to be sold by public auction or in any other manner which the Commissioner deems suitable: Provided that the Commissioner may direct that in lieu of being sold the thing shall be destroyed or shall be appropriated to the Government:

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Provided further that if such thing is of a perishable or dangerous nature the Commissioner may direct the sale or destruction of it before condemnation.

Admission of guilt.

91. (1) If any person — (a) has, in the opinion of the Commissioner, contravened any provision of this Act or failed to comply with any such provision with which it was his duty to comply; (Amended A.10/1978.) (b) agrees to abide by the Commissioner’s decision; and (c) deposits with the Commissioner such sum as the Commissioner may require of him but not exceeding the maximum fine which may be imposed upon a conviction for the contravention or failure in question or makes such arrangement or complies with such conditions with regard to securing the payment of such sum as the Commissioner may require, the Commissioner may, after such enquiry as he deems necessary, determine the matter summarily and without legal proceedings order forfeiture by way of penalty of the whole or a part of the amount so deposited or secured. (2) Anything done for the purposes of subsection (1) by an agent generally or specifically authorized thereto by any person shall be deemed to have been duly done by that person in terms of that subsection. (3) There shall be a right of appeal to the Minister from any determination or order of the Commissioner under subsection (1) whereby a penalty exceeding one thousand emalangeni is imposed, and the Minister’s decision on any such appeal shall be final. (Amended A.10/1978; A.5/1991.) (4) Subject to section 62(3) the imposition of a penalty under subsection (1) shall not be regarded as a conviction in respect of a criminal offence, but no prosecution for the relevant offence shall thereafter be competent. (5) Nothing in this section shall in any way affect liability to forfeiture of goods or payment of duty or other charges thereon.

Payment and disposal of fines and penalties.

92. Any fine or penalty recovered under this Act shall be paid to the controller in the area where such fine or penalty is recovered, and shall be paid by him into the Consolidated Fund, and the proceeds of sale of anything forfeited or seized or condemned under this Act shall also be paid into such fund: Provided that the Commissioner may in his discretion withhold a sum not exceeding one-third of any such fine, penalty or proceeds which he may then award to any person (including any officer) by whose means or information the fine or penalty or forfeiture was imposed or the seizure made. (Added A.5/1991.)

Remission or mitigation of penalties and forfeiture.

93. The Commissioner may direct that any vehicle, plant, material or goods detained, seized or forfeited under this Act be delivered to the owner thereof, subject to payment of any duty which may be payable in respect thereof and any charges which may have been incurred in connexion with the detention, seizure or forfeiture, and to such conditions (including a condition providing for the payment of an amount not exceeding the value for duty purposes of such vehicle, plant, material or goods plus any unpaid duty thereon) as he deems fit or may mitigate or remit any penalty incurred under this Act on such conditions as he deems fit: Provided that if the owner accepts such conditions he shall not thereafter be entitled to institute or maintain any action for damages on account of the detention, seizure or forfeiture.

Recovery of penalties by process of law.

94. (1) Without derogation from any powers conferred upon the Commissioner, any penalty, fine or forfeiture incurred under this Act may be recovered either by civil action or upon criminal prosecution in any court and in the case of a criminal prosecution the court passing sentence may also make an order regarding any unpaid duty or charge and impose civil penalties or enforce forfeiture.

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(2) Any civil proceedings under this section may be instituted in the name of the Attorney-General.

Jurisdiction of courts.

95. (1) A court shall have jurisdiction to try any person for an offence under this Act if the thing in respect of which such offence was committed was found within or was conveyed from to or through the area of jurisdiction of such court. (2) Any person who at any place deemed under section 5 (1 bis) to be a place of entry for Swaziland or in any territory with the government with which an agreement has been concluded under section 51, performs any act which constitutes an offence under this Act shall be guilty of such offence, which shall for purposes of jurisdiction of a court to try the offence, be deemed to have been committed at any place where the accused happens to be. (Added A.11/1988.) (Original subsection (3) repealed A.11/1988.) (3) Notwithstanding any other law, a magistrate’s court shall have jurisdiction to impose any punishment prescribed by or make any order of court provided for in this Act. (Amended A.11/1988.) (4) Notwithstanding anything in any other law contained, a magistrate’s court shall have jurisdiction to give judgment for any amount claimed under this Act, together with the costs of obtaining such judgment. (Added A.4/1979.)

Notice of action and period of bringing action.

96. (1) No legal proceedings shall be instituted against the Government, the Minister, the Commissioner or an officer for anything done in pursuance of this Act until one month after delivery of a notice in writing setting forth clearly and explicitly the cause of action, the name and place of abode of the person who is to institute proceedings and the name and address of his attorney or agent, if any. (2) Subject to section 89, the period of extinctive prescription in respect of legal proceedings against the Government, the Minister, the Commissioner or an officer on a cause of action arising out of this Act shall be one year and shall begin to run from the date when the right of action first arose.

Approval of container operators

96bis. The Commissioner may, subject to such conditions as he may generally or in respect of a particular case determine, approve for operating containers in Swaziland any person providing international transportation of containerized goods. (Added A.11/1988.)

PART XII

GENERAL

Pilot may appoint agent.

97. Notwithstanding this Act, the pilot of an aircraft, instead of himself performing any act, including the answering of questions, required by or under this Act to be performed by him, may at his own risk appoint an agent to perform any such act, and any such act performed by such agent shall in all respects and for all purposes be deemed to be the act of the pilot: Provided that the personal attendance of the pilot may be demanded at any time by the controller.

Liability of principal for acts of agent.

98. Every importer, exporter, pilot, manufacturer, licensee, remover of goods in bond or other principal shall, for the purposes of this Act, be responsible for any act done by any agent acting on his behalf, whether within or outside Swaziland.

Liability of agent for obligations of principal.

99. (1) An agent appointed by any pilot, and a person who represents himself to any officer as the agent of any pilot, and is accepted as such by that officer, shall be liable for the fulfilment, in respect of the matter in question, of all obligations, including the payment of duty and charges, imposed on such pilot by this Act and to any penalties or forfeitures which may be incurred in respect of such matter.

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(2) (a) An agent appointed by any importer, exporter, manufacturer, licensee, remover of goods in bond or other principal and person who represents himself to any officer as the agent of any importer, exporter, manufacturer, licensee, remover of goods in bond or other principal, and is accepted as such by that officer, shall be liable for the fulfilment, in respect of the matter in question, of all obligations, including the payment of duty and charges imposed on such importer, exporter, manufacturer, licensee, remover of goods in bond or other principal by this Act and to any penalties which may be incurred in respect of that matter: Provided that such person shall cease to be so liable if he proves to the satisfaction of the Commissioner that — (i) he was not a party to the non-fulfilment by any such importer, exporter, manufacturer, licensee, remover of goods in bond or other principal, of any such obligation; (ii) when he became aware of such non-fulfilment he notified the Controller thereof as soon as practicable; and (iii) all reasonable steps were taken by him to prevent such non-fulfilment. (Added A.2/1985.) (b) No importer, exporter, manufacturer, licensee, remover of goods in bond or other principal shall by virtue of paragraph (a) be relieved from liability for the fulfilment of any obligation imposed on him by this Act and to any penalty which may be incurred in respect thereof. (Amended A.7/1981.) (3) Every clearing, shipping and forwarding agent and every agent acting for the master of a ship or the pilot of an aircraft and any other class of agent which the Minister may by regulation specify shall, before transacting any business with the department, and any class of carrier of goods to which this Act relates which the Minister may by regulation specify shall, before conveying any such goods give such security as the Commissioner may require for the due observance of this Act: Provided that the Commissioner may call for special or additional security in respect of any particular transaction or conveyance of goods from any agent or carrier. (4) Any agent (including a representative or associate of the principal) representing or acting for or on behalf of any exporter, manufacturer, supplier, shipper or other principal outside Swaziland who exports goods to Swaziland shall be liable in respect of any goods ordered through him or obtained by any importer by means of his services for the fulfilment of all obligations imposed upon such exporter, manufacturer, supplier, shipper or other principal by this Act, and to any penalties or forfeiture which may be incurred by any such exporter, manufacturer, supplier, shipper, or other principal under this Act: Provided that any such agent shall cease to be so liable if he proves to the satisfaction of the Commissioner that — (a) he was not a party to the non-fulfilment by any such exporter, manufacturer, supplier, shipper or other principal of any such obligation; (b) when he became aware of such non-fulfilment he forthwith notified the controller thereof; and (c) all reasonable steps were taken by him to prevent such non-fulfilment. (5) Every agent of a class referred to in subsection (4) and specified in any regulation for the purposes of this subsection shall register himself with the Commissioner and furnish such security as the Commissioner may require for the due observance of this Act: Provided that the Commissioner may accept such security from any association of such agents, approved by him, which undertakes to give security on behalf of its members. (6) No agent referred to in subsection (5) shall transact business on behalf of any exporter, manufacturer, supplier, shipper or any other principal after a date specified by the Minister by notice in the Gazette unless he has complied with subsection (5). (7) The registration and operation of any agent referred to in subsection (5) shall be subject to such conditions as the Commissioner may impose by rule and the Commissioner may cancel the registration of an agent who has persistently contravened or failed to comply with this Act or has committed an offence referred to in section 80, 83, 84, 85 or 86.

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Agent may be called upon to produce written authority.

100. If any person makes an application to an officer to transact any business on behalf of another person or if any person represents himself to an officer as the agent of another person, such officer may require the person so applying or representing himself to produce a written authority in’ a form approved by the Commissioner from the person on whose behalf the application is made or on whose behalf the person so representing himself is alleged to be acting, and in default of the production of such authority, the officer may refuse to transact such business.

Business accounts, documents, etc. to be available for inspection.

101. (1) Any person carrying on any business in Swaziland shall keep within Swaziland in the English language such records relating to his transactions as the Minister may prescribe and such records shall be kept in such form and manner and shall be retained for such period as the Minister may prescribe. (1bis) The Commissioner may, subject to such conditions as he may determine, allow any person referred to in subsection (1) to retain in lieu of any book, account or document required to be retained in terms of that subsection, a reproduction of any such book, account or document obtained by means of microfilming or any other process. (Added A.7/1981.) (2) Different provisions may be prescribed in respect of different classes or kinds of records and different classes of persons. (3) Any person referred to in subsection (1) or (2) shall upon demand by the controller or the Commissioner produce to him such records referred to in those subsections as he may require and such person shall render such returns or submit such particulars in connexion with his transactions to the Commissioner as the latter may from time to time require. (3bis) The secretary may, subject to such conditions as he may determine, allow any such person to produce in lieu of any such book, account or document required to be produced in terms of subsection (3), a copy thereof obtained by means of a reproduction referred to in subsection (1bis), and such copy shall, subject to compliance with such conditions, for all purposes have all the effects of the original book, account or document concerned. (Added A.7/1981.) (4) The Minister may prescribe the — (a) records, transactions or operations in respect of which a chartered accountant’s certificate shall be produced to the controller by such class of persons referred to in subsection (1) or (2) as he may so prescribe; and (b) nature and form of the certificate and the intervals at which it shall be produced.

Seller of goods to produce proof of payment of duty.

102. (1) Any person selling, offering for sale or dealing in imported, excisable or sales duty goods or any person removing the same, or any person having such goods entered in his books or mentioned in any documents referred to in section 75(4bis) or 101, shall, when requested by an officer, produce proof as to the person from whom the goods were obtained and, if he is the importer or manufacturer or owner, as to the place where the duty due thereon was paid, the date of payment, the particulars of the entry for home consumption and the marks and numbers of the cases, packages, bales and other articles concerned, which marks and numbers shall correspond to the documents produced in proof of the payment of the duty. (Amended A.5/1991.) (2) In any prosecution or proceedings under this Act, any statement in any record, letter or other document kept, retained, received or despatched by or on behalf of any person to the effect that any goods of a particular price, value, free on board price or domestic value (including any commission, discount, costs, charge, expense, royalty, freight, tax, drawback, refund, rebate, remission or other information which relates to such goods and has a bearing on such price or value) quantity, quality, nature, strength or other characteristic have been manufactured, imported, ordered, supplied, purchased, sold, dealt with, or in, or held in stock at any time, shall be admissible in evidence against him as an admission that he has at that time manufactured, imported, ordered, supplied, purchased, sold, dealt with, or in, or held in stock goods of that price value, free on board price, domestic value, quantity, quality, nature, strength or other characteristic. (3) If in any such prosecution or proceedings the question arises ‘whether any such goods have been sold or used or disposed of or are or were in the possession of any person in such manner as not to render them subject to duty, it shall be

431 presumed that such goods have not been sold or used or disposed of or are not or were not in the possession of such person in such manner unless the contrary is proved. (4) If in any prosecution under this Act or in any dispute in which the government, the Minister or the Commissioner or any officer is a party, the question arises whether the proper duty has been paid or whether any goods or plant have been lawfully used, imported, exported, manufactured, removed, or otherwise dealt with or in, or that such books, accounts, documents, forms or invoices do not exist or have not been duly completed and kept or have not been so furnished as the case may be, unless the contrary is proved. (Amended A.11/1988; A.5/1991.) (5) If in any prosecution under this Act or in any dispute in which the Government, the Minister or the Commissioner or any officer is a party, it is alleged by or on behalf of the Government, the Minister or the Commissioner or such officer that any goods or plant have been or have not been imported, exported, manufactured in Swaziland, removed or otherwise dealt with or in, it shall be presumed that such goods or plant have been, or (as the case may be) have not been imported, exported, manufactured in Swaziland, removed or otherwise dealt with, or in, unless the contrary is proved.

Liability of company, partnership, etc.

103. For the purposes of this Act any reference to a person shall be deemed to include a reference to a company, close corporation, co-operative society, firm, partnership, statutory body or club, and in the event of a contravention of or non- compliance with this Act or the incurring of any liability under this Act by any company, close corporation, co-operative society, firm, partnership, statutory body or club any person having the management of any premises or business in or in connection with which the contravention or non-compliance took place or the liability was incurred may be charged with the relevant offence and shall be liable to any penalties provided therefor and shall be liable in respect of any liability so incurred. (Amended A.5/1991.)

Deferment of payment of duty.

104. The Commissioner may in his discretion and subject to such conditions (including the payment of interest at reasonable rates on the amount due) as he may consider necessary, permit any duty payable under this Act or any penalty imposed by him to be paid by instalments of such amounts and at such times as he may determine.

Samples.

105. (1) An officer may on entry of any imported goods or during the manufacture of any excisable goods or sales duty goods, or at any time after such entry or manufacture take, without payment from any person in possession of such imported goods or of any manufactured or partly manufactured excisable goods or sales duty goods, samples of such imported, manufactured or partly manufactured goods or of materials intended for the manufacture of excisable goods or sales duty goods or of goods used under Part X, for examination or for ascertaining the duty payable thereon or for such other purpose as the Commissioner deems necessary, and such samples shall be dealt with and accounted for in such manner as the Commissioner may direct. (2) For the purpose of determining the duty leviable in respect of any goods comprising a single consignment, or in any vessel, tank or other container of goods, the nature or characteristic of all the goods in that consignment, vessel, tank or other container shall be deemed to correspond to the nature or characteristic of any sample taken by the officer from such consignment, vessel, tank or other container.

Expenses of landing, examination, weighing, analysis, etc.

106. (1) All handling of and dealing with goods for the purposes of this Act shall be performed by or at the expense and risk of the importer, exporter, manufacturer or owner of the goods, whoever has control of such goods, except in the case of goods examined at a duty warehouse, where such handling of and dealing with goods shall be performed at the expense and risk of the owner thereof. (2) Subject to this Act, the Commissioner shall not, except on such conditions, including conditions relating to security, as may be determined by him, allow goods to pass from his control until he has satisfied himself that this Act or any law relating to the importation or exportation or transit carriage of goods through Swaziland has been complied with in respect of such goods, and the Government or the Commissioner or any officer shall in no case be liable in respect of any 432 claims arising out of the detention of goods pending the decision of the Commissioner or for the cost of such detention. (Amended A.11/1988.) (3) If the Commissioner considers it necessary for the purposes of subsection (2) or section 105(1) that any goods should be analysed he may direct that such goods be analysed by a person designated by him and that the analysis be done in accordance with a method determined by him. (4) The cost of analysis of any goods for the purposes of subsection (2) shall be borne by the importer, exporter, manufacturer or owner of such goods except where the Commissioner considers the analysis necessary for the purposes of subsection (2) and the result of the analysis confirms the correctness of the declaration or bill of entry made or presented by such importer, exporter, manufacturer or owner in respect of such goods: Provided that the cost of analysis shall in no case be borne by the Government where it is carried out in connexion with any application for refund of duty or substitution of any entry or where the result of analysis shows that the goods in question were incorrectly or insufficiently described on the prescribed invoice relating thereto. (5) Any goods remaining in the custody or under the control of the department after expiry of a period of 28 days from the date of due entry thereof, may be removed by the Controller to the State warehouse or other place indicated by the Controller, and may thereupon be disposed of in terms of section 42(3). (Added A.4/1979.)

Control in respect of manufacture of certain goods or materials and persons who carry out processes in connexion therewith.

107. (1) The manufacturer of any goods or materials used or capable of being used in the manufacture of any goods to which this Act applies and any person who carries out a preliminary, intermediate or supplementary process in connexion with such goods or materials or any goods to which this Act applies, shall, in accordance with the directions of the Commissioner — (a) register with the Commissioner any such formula, factory, machinery, instrument, appliance or apparatus used in connexion with the manufacture of such goods or materials or the carrying out of any such process as he may require; (b) comply with such conditions relating to the manufacture or the carrying out of any such process as he may impose in each case; (c) keep such records as he may require as to — (i) the nature, characteristic, source, origin and quantities of the ingredients of such goods and materials and of such other particulars of the ingredients of such goods or materials as he may specify; (ii) the processes carried out in respect of such goods or materials; (iii) the person on whose behalf such processes were carried out; and (iv) the purchasers of such goods or materials; (d) render such returns or furnish such certificates in respect of such goods or materials as the Commissioner may require; and (e) produce such documents in support of any records kept in terms of paragraph (c) or returns or certificates rendered or furnished in terms of paragraph (d) as he may require. (2) For the purposes of subsection (1) any preliminary, intermediate or supplementary process in connexion with any goods or materials mentioned in that subsection shall include any such process relating to the ordering, purchasing, selling or disposal of, and the entering into any contract for the manufacture of, any such goods or materials.

Embargo on goods.

108. If any officer has reason to believe that the correct duty has not been paid on any goods or that there has been or may be in respect of any goods, plant, vehicle, or thing a contravention of this Act or of any law relating to the import or export of goods, he may place an embargo on such goods, plant, vehicle or thing, wheresoever found, and no person shall remove

433 such goods, plant, vehicle or thing from the place indicated by the officer, or in any way deal therewith except with the permission of the officer, until the embargo has been withdrawn.

Destruction of goods and detention of vehicles.

109. (1) If in the opinion of the Commissioner it is necessary for the safeguard of public health or for the safety of the public or the State, he may at any time, and at the expense and risk of the importer, exporter, owner, or pilot concerned, according as the Commissioner may determine — (a) cause any goods under customs and excise control forthwith to be destroyed or otherwise disposed of; or (b) delay the departure of any vehicle from any place in Swaziland for a period not exceeding forty-eight hours. (2) No person shall be entitled to any compensation for loss arising out of an bona fide action of the Commissioner under subsection (1). (Amended A.4/1791.)

Instruments and tables.

110. (1) Except as elsewhere provided in this Act, the Minister may prescribe the instruments, metres, gauges and other appliances and the tables, formulae and other methods of calculation to be used in ascertaining the mass, quantity, strength, relative density, temperature, pressure or any other characteristic of any goods for the purposes of this Act. (Amended A.5/1991.) (2) For calculating the full quantity of any goods which have been manufactured or used under this Act, the Minister may prescribe tables indicating the quantity of goods which shall be deemed to have been manufactured from any given quantity of any goods or the quantity of goods which shall be deemed to have been used in the manufacture of any given quantity of any goods manufactured therefrom.

Production of certificate of officer on registration of certain motor vehicles.

111. No motor vehicle registering authority in Swaziland shall register any motor vehicle which has previously been registered in a territory outside Swaziland unless a certificate issued by an officer is produced stating that the requirements of this Act in respect of the importation of such vehicle have been complied with. (Amended A.10/1978.)

Wreck.

112. (1) For the purposes of this section “wreck” includes any portion of an aircraft which has been wrecked or abandoned or of its cargo, stores or equipment or any other article thereon. (2) Any person who has a wreck in his possession shall without delay give notice thereof to the nearest controller and shall (unless he is the owner of such wreck or the duly authorized agent of such owner) if required, forthwith deliver that wreck or permit it to be delivered to such controller, and unless it is necessary for its preservation or safe keeping, no person shall without the permission of such controller remove it or alter it in quantity or quality. (3) Wreck found in or brought into Swaziland may at any time after it has come under the control of the Commissioner be disposed of by him in the manner set forth in section 42 but shall otherwise be subject to this Act. (4) The Minister may prescribe the circumstances under which and the conditions subject to which a License may be issued by the Commissioner to any person entitling him to search, or search for, any wreck but no such License shall give the holder thereof the exclusive right of searching for or salvaging any particular wreck.

Prohibitions and restrictions.

113. (1) The import of the following goods is hereby prohibited — (a) cigarettes with a mass of more than 2 kilogrammes per 1 000 cigarettes; (Amended A.5/1991.) (b) (Repealed A.5/1991.) (c) a proscribed publication under the Proscribed Publications Act, No. 17 of 1968;

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(d) unlawful reproductions of any work if such reproductions are prohibited from importation under any law relating to copyright; (e) prison-made and penitentiary-made goods; and (f) goods the import of which in terms of this Act or any other law required to be authorized by a permit, certificate or other authority, unless imported under such permit, certificate or other authority which purports to have been issued thereunder. (Amended A.2/1985.) (2) Goods which purport to have been imported under a permit, certificate or other authority referred to in subsection (1) shall be deemed to have been imported in contravention of that subsection unless such permit, certificate or other authority in question is produced to the controller. (3) The Minister may by notice in the Gazette suspend the operation of any provision of subsection (1) if he is satisfied that such suspension would be in the public interest. (4) The Minister may by notice in the Gazette prohibit the export or the transit carriage through Swaziland to any place of munitions or other goods which he considers capable of being converted into or used in the manufacture of munitions. (5) For the purposes of subsection (4) export or transit carriage to a place includes dispatch to that place either directly or indirectly and either permanently or for a temporary purpose, and any goods specified in a notice issued under subsection (4) which are brought to a place so specified shall be deemed to have been exported or carried to that place in contravention of such notice by the person who despatched such goods, and the person who despatched any such goods shall be presumed to have exported or carried those goods to such place unless he proves that he did not know and had no reason to believe that such goods would be brought to that place, and that he could not have prevented it. (6) The Minister may by regulation prohibit or restrict the transit carriage through Swaziland of goods referred to in subsection (1) or of any other goods in respect of which he considers any such prohibition or restriction necessary in the public interest. (7) (a) If any person imports or exports or attempts to import or export goods in contravention of any law other than this Act such goods, together with any other goods contained in the same package as well as the package itself shall, unless such law provides for their disposal, be liable to forfeiture wheresoever and in possession of whomsoever found. (b) Any officer, magistrate or member of the police force may detain any goods for the purpose of establishing whether those goods are liable to forfeiture under paragraph (a). (Added A.5/1991.) (c) Any goods so detained may be released by the Commissioner to the Government department or person concerned. (Added A.5/1991.) (8) No person shall manufacture cigarettes the mass of the tobacco of which exceeds 2 kilograms per 1 000 cigarettes. (Amended A.5/1991.) (9) The export of goods the export of which is in terms of this Act or of any other law required to be authorized by a permit, certificate or other authority, is hereby prohibited unless exported under such permit, certificate or other authority which in terms purports to have been issued thereunder, and such permit, certificate or other authority is produced to the controller before export of such goods.

Duty constitutes a debt to the Government. 114. (1) (a) The correct amount of duty for which any person is liable in respect of any goods imported into or exported from Swaziland or any goods manufactured in Swaziland shall from the date on which liability for such duty commences; and (b) any interest payable under this Act and any fine, penalty or forfeiture incurred under this Act shall, from the time when it should have been paid. constitute a debt to the Government by the person concerned, and any goods in a duty warehouse or in the custody of any officer (including goods in a rebate storeroom) and belonging to that person, and any goods afterwards imported or exported by the person by whom the debt is due, and any imported goods in the possession or under the control of such person or on

435 any premises in the possession or under the control of such person, and any goods in respect of which an excise or sales duty is prescribed (whether or not such duty has been paid) and any materials for the manufacture of such goods in the possession or under the control of such person or on any premises in the possession or under the control of such person and any vehicles, machinery, plant or equipment in the possession or under the control of such person in which fuel in respect of which any duty is prescribed (whether or not such duty has been paid), is used, transported or stored, may be detained in accordance with subsection (4) and shall be subject to a lien until such debt is paid. (Amended A.10/1978; A.11/1988; A.5/1991.) (1bis) Any plant and stills for the manufacture of any goods in respect of which an excise or sales duty is prescribed which is in the possession or under the control of such person or on any promises in the possession or under the control of such person shall be subject to a lien in favour of Government from the time when the liability for the duty payable as contemplated in subsection (1) in respect of any goods so manufactured commences until the debt in question is paid, as if such plant and stills are detained in accordance with subsection (2): Provided that the Commissioner may allow any such plant or still to be used under such conditions as he may impose in each case. (Added A.10/1978.) (2) Any claim of the Government shall have priority over the claim of any person upon anything subject to the lien contemplated in subsection (1) or (1bis) and may be enforced by sale or other proceedings if the debt is not paid within three months after the date on which it became due. (Amended A.10/1978.) (3) Any refund of duty or a deposit or any other amount due to such person in respect of any matter whatsoever may be set off against such debt. (4) The Commissioner or any officer may detain anything referred to in subsection (1) by sealing, marking, locking, fastening or otherwise securing or impounding it on the premises where it is found or by removing it to a place of security determined by the Commissioner: Provided that the Commissioner may allow any such thing to be used under such conditions as he may impose in each case. (Amended A.10/1978.) (5) Any reference to goods in this section shall be deemed to include a reference to the containers of such goods.

Entries, oaths, etc. made outside Swaziland of full force and effect.

115. Any entry, writing, oath or declaration required to be made under this Act shall, if made outside Swaziland to or before an officer of Swaziland, be binding and of full force and effect in Swaziland.

Manufacture of excisable goods solely for use by the manufacturer thereof.

116. (1) Notwithstanding this Act, the Commissioner may in respect of any excisable goods (except ethyl alcohol) manufactured by individuals (except under item 604.00 of Schedule No. 6) for their own use, and not for sale or disposal in any manner, exempt such excisable goods from the whole or any portion of the duty thereon, subject to such conditions as he may in each case impose — (a) if he considers that such manufacturing results or is likely to result in loss of revenue or is likely to be detrimental to any industry in Swaziland to such extent as to warrant any action described in this paragraph — (i) by rule prohibit the sale to any such person of any plant, apparatus, appliance, instrument or material used or capable of use in or designed for the manufacture of such excisable goods or impose such conditions in respect of the advertising or sale of such plant, apparatus, appliance, instrument or material as he deems fit; (ii) for the purpose of calculating the duty payable on such excisable goods manufactured by any such person, estimate the quantity manufactured or the strength or other characteristic of any such quantity in any manner he may deem fit; or (iii) in respect of any quantity of such excisable goods in respect of which duty will in his opinion become payable, accept duty (or any portion thereof) calculated according to any basis which he 436

deems reasonable, from any person who sells or disposes of any material for use in the manufacture of such excisable goods to the manufacturer thereof; (b) if he considers that such manufacturing does not result or is not likely to result in loss of revenue or is not, or is not likely to be, detrimental to any industry in Swaziland, to the extent stated in paragraph (a); or (c) if in the manufacture of such excisable goods, used parts or material on which any duty had been paid previously was used, to such extent as he deems reasonable. (2) Any estimate made by the Commissioner for the purposes of subsection (1)(a)(ii) or any decision given by him as to the basis of calculating the duty to be accepted in terms of subsection (1)(a)(iii) or as to the amount of any duty payable under this section shall be final. (3) The manufacturer of any goods exempted from the whole or any portion of the duty under this section shall be liable for payment of the whole or such portion of such duty as the Commissioner may determine if they are sold or disposed of by such manufacturer. (4) The Commissioner may, subject to such conditions as he may in each case impose, exempt any goods to which this section relates from any provision of Part IV, V or VIII.

117. (Repealed A.5/1991.)

Statistics.

118. (1) Such statistics of the import and export trade of Swaziland and of excisable goods manufactured in Swaziland and of sales duty goods manufactured in and imported into Swaziland as the Minister may determine shall be compiled, tabulated and published at such times and in such manner as the Minister may direct. (2) For the purpose of subsection (1) any person — (a) entering any goods for import or export shall, in addition to any particulars necessary for making due entry of such goods, furnish such particulars of such goods as the Commissioner may from time to time require for the compilation of import and export statistics; or (b) manufacturing any excisable goods shall furnish in such manner and at such times as the Commissioner may require the value for excise duty purposes in terms of section 69 of all excisable goods manufactured by him, whether or not such goods are subject to ad valorem duty or to a duty calculated according to a unit of quantity, volume or other measurement, as the case may be. (Amended A.11/1988.)

Transitional provisions applicable when Schedule amended.

119. If any Schedule is amended and the Schedule as amended provides that the Minister or the Commissioner may impose or prescribe any condition or approve of any matter or thing in relation to any class of goods, any condition imposed or prescribed or approval given by the Minister or the Commissioner under such Schedule in relation to such class of goods before such amendment shall be deemed to have been imposed, prescribed or given under such Schedule as amended.

Regulations and rules.

120. (1) The Minister may by reference make regulations — (a) prescribing the powers, duties and hours of attendance of officers; (b) determining the special services for which charges shall be payable on account of the attendance of or supervision by officers, the rate of charges and the conditions attaching to such special services, including the payment of transport charges; (c) as to the reporting inwards and outwards of aircraft (including such reporting of aircraft landing at places not appointed as places of entry or duty airports) the entry or departure of vehicles overland, the landing, loading, removal, detention, release, examination, conveyance and handling of cargo (including transit cargo) the control of persons (including their baggage and goods) entering or leaving Swaziland, the placing into or removal from any Government warehouse of goods and the removal in bond of goods, and to the

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departure of aircraft destined for a place outside the common customs area from a place within Swaziland to another place within Swaziland; (d) as to the control of the storage or manufacture of goods in duty warehouses (including the suitability of any buildings, plant and methods of manufacture for the purposes of this Act, the hours of conducting any operations in any such warehouse, the supervision by officers of any such operations, the securing or marking of such plant, the inspection of such warehouses and the removal of goods from such warehouses) the testing of the output of stills, the conditions on which stills may be made, possessed, imported, disposed of or used, and the fresh fruit which may be used by an agricultural distiller for the distillation of spirits; (e) as to the import, export, transit of goods, the entry of goods, the payment of duties and other charges and fees, the costs which shall, for the purposes of section 45 be included in or excluded from the production cost of goods in general or of goods of any class or kind, and the movement of goods to and from any territory with the government of which an agreement has been concluded under section 51; (f) prescribing the form of and the particulars to be inserted on invoices or certificates in respect of any goods to which this Act applies and which are imported into or manufactured in Swaziland; (g) as to the collection of duty by means of stamps, the method of applying stamps or stamp impressions to containers, the cancellation of stamps, the use of franking or counting machines, inks, dyes and other appliances and materials, the accounting for stamp labels and stamp duties and the disposal of stamp labels; (h) as to the collection of excise and sales duties and the time, manner, terms of payment and calculation thereof; (j) as to the collection of duties which become payable under section 58; (k) as to the circumstances under which Licenses may be granted and the manner of issuing and renewing Licenses; (l) governing the entry of goods under any item of Schedule No. 3, 4, 5, 6 or 7 and prescribing the conditions on which such goods may be so entered or may be transferred from one manufacturer or owner to another or may be used, and as to the registration of manufacturers or owners so entering goods (including the requirements as to the suitability of buildings, premises, storerooms and methods of manufacture for the purposes of this Act to be complied with by such manufacturers or owners), the records to be kept by such manufacturers or owners and the form of the application for registration and the particulars to be furnished by such manufacturers or owners; (m) prescribing the returns and price lists to be rendered by importers or manufacturers or owners of any class or kind of goods; (n) prescribing the form of any License, bill of entry, certificate and any other document, register, stock book or return which he considers necessary for the effective administration of this Act; (o) as to all matters which by this Act are required or permitted to be prescribed by regulation; and (p) as to such other matters as are necessary or useful to be prescribed for the purposes of this Act. (2) The Commissioner may make rules in respect of any matter in connexion with which it is expressly indicated that such matter is to be dealt with in accordance with rules made by him. (3) The regulations and rules made under this section may provide penalties for any contravention thereof or failure to comply therewith not exceeding the penalties mentioned in section 78(2).

Repeal.

121. (1) Subject to subsection (2) the following laws are hereby repealed — (a) the Customs Proclamation (Cap. 200); (b) the Excise Proclamation. (Cap. 201); and (c) the Customs Duties on South African Spirits, Beer and Wines Proclamation, No. 35 of 1964. (2) Anything done under the laws repealed by subsection (1) shall be deemed to have been done under the corresponding provision of this Act. 438

THE HIRE PURCHASE ACT Commentary This is an Act regulating hire purchase agreements in Swaziland. According to the Act every hire purchase agreement must be in writing. Section 7 of the Act goes on to lay down what must be contained in every agreement and section 9 then lists a number of things the presence or absence of which would render the said agreement invalid, for example it states that there must be a deposit paid when drawing up the agreement, without which deposit the agreement would be invalid

The Act states that the Minister for Enterprise and Employment may by notice in the gazette prescribe the percentage of the cash price to be regarded as deposit and the maximum period within which the purchase price under a hire purchase agreement shall be payable.

One other important condition of this agreement is that the seller has an obligation to state in writing to the prospective buyer the cash price of the goods to be sold.

The Act goes on to prohibit against inducing a person to make a purchase. It says that it shall be an offence for an employee, agent or representative of the seller to directly or indirectly induce a person to enter into an agreement.

Both the seller and the purchaser have the duty to furnish information to each other. The purchaser has the right to request information from the seller. This information involves but is not limited to requesting information on the amount paid under the agreement and the amount due and unpaid. The seller may, at any time during the existence of the agreement also request particulars of the purchaser like his residential and business address, and the premises where the goods are ordinarily kept.

If the buyer happens to change his residential address or loses possession of the goods he has the duty to notify the seller within 14 days.

According to section 15 if a buyer fails to make payment and the seller repossesses the goods in any way other than by a court order, but the buyer subsequently pays all arrears due under the agreement, the seller is obliged to return the goods to the buyer.

The buyer may terminate the agreement by giving written notice to the seller provided he has placed the seller in the financial position in which he would have been if such agreement had expired during regular performance. This basically means that when the buyer is desirous of ending the hire purchase agreement all he has to do is to pay the balance owing and thereafter the agreement is terminated and ownership of the goods passes to him.

The Act states that in instances where the seller institutes action in a court of law for the return of any goods the court may make an order for the return of such goods to the seller but subject to the repayment by the seller of so much of the purchase price received by him as the court may find just. In other instances however, the court may order the buyer to pay the balance of the purchase price.

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In cases where goods have had to be sold by the seller in order to raise the balance of the debt due, where the money received from such sale more than covers the debt and the costs of the sale the balance has to be paid over to the purchaser.

The Hire-Purchase Act, 1969

Date of commencement: 16th May, 1969.

Date of Assent: 7th May, 1969.

Arrangement of Sections 1. Short title.

PART I

MOVABLES 2. Interpretation. 3. Application of this Part. 4. Power of Minister in regard to terms of agreements and application of Act. 5. Prospective buyer to be informed of cash price of goods. 6. Agreements to be in writing and copy to be supplied to buyer. 7. Contents of agreement. 8. Invalidity of certain provisions in an agreement. 9. Invalidity of certain agreements. 10. Inducement to enter agreement. 11. Obligation of seller and buyer to furnish information to each other. 12. Cession or hypothecation of and authority to collect periodical income. 13. Negotiable instrument. 14. Limitation of seller’s right to enforce certain provisions of agreement. 15. Buyer’s right to be reinstated after return of goods to seller. 16. Buyer’s right to terminate agreement and to pay instalments before due date. 17. Buyer’s right upon termination, rescission or breach of agreement. 18. Rights of parties to agreement if portion of goods are returned by arrangement. 19. Valuation of goods. 20. Powers of court. 21. Rights of parties after making of order of court in terms of section 20. 22. Automatic interdict against removal or use of goods. 23. Decrees of civil imprisonment and garnishee orders. 24. Jurisdiction. 25. Waiver of rights by buyer. 26. Penalties.

PART II

IMMOVABLE PROPERTY 27. Non-applicability of Part I. 28. Rights of buyer of immovable property who has paid part of the purchase price. 29. Application of this Part.

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An Act to provide/or the regulation c/hire-purchase agreements and of instalment sales subject to resolutive conditions, and/or matters incidental thereto and/or the granting of certain rights to a purchaser of immovable property who has paid part of the purchase price.

Short title.

1. This Act may be cited as the Hire-Purchase Act, 1969.

PART I

MOVABLES

Interpretation.

2. (1) In this Part, unless the context otherwise requires —

“agreement” means an instalment agreement or a hire-purchase agreement;

“buyer” means the person who, in terms of any agreement, is the buyer or the lessee;

“cash price”, in relation to any goods, means the price stated in respect of those goods under section 7(1)(a);

“hire-purchase agreement” means any agreement whereby goods are sold subject to the condition that the ownership in such goods shall not pass merely by the transfer of the possession of such goods, and the purchase price is to be paid in instalments, two or more of which are payable after such transfer; and includes any other agreement which has, or agreements which together have, the same import, whatever form such agreement or agreements may take: Provided that any agreement which or agreements which together provide for the letting and hiring of goods — (a) with the right to purchase such goods only after two or after more than two instalments subsequent to such transfer have been paid in respect thereof; or (b) with the right, after two or after more than two instalments subsequent to such transfer have been paid in respect thereof, to continue or renew from time to time such letting and hiring at a nominal rental, or to continue or renew, from time to time, the right to be in possession of the goods, without any further payment or against payment of a nominal periodical or other amount; shall, whether or not the agreement or agreements may at any time be terminated by either party or one of the parties, for the purposes of this Act, be deemed to be of the said import;

“instalment agreement” means any agreement of purchase and sale whereby ownership in the goods sold passes upon delivery, and the purchase price is to be paid in instalments; two or more of which are payable after delivery, and under which the buyer is prohibited from alienating or encumbering the goods sold until the purchase price has been paid in full or the full purchase price becomes payable if the buyer alienates or encumbers the goods sold, or the seller would be entitled to the return of the goods if the buyer should fail to comply with any one or more provisions thereof, and includes any other agreement which has or agreements which together have the same import whatever form such agreement or agreements may take;

“magistrates court” means a court of the First Class established under the Magistrates Courts Act, No. 38 of 1968;

“Minister” means the Minister for Enterprise and Employment;

“purchase price” means the total sum payable under any agreement to the seller by the buyer, exclusive of any sum payable in terms of the agreement as a penalty or as damages for the breach thereof or by way of interest upon instalments which are in arrear;

“seller” means the person who, in terms of any agreement, is the seller or lessor.

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(2) If any seller has agreed that any part of the purchase price may be discharged otherwise than by the payment of money, any such discharge shall, subject to section 7, be deemed to be a payment of that part of the purchase price.

Application of this Part.

3. (1) This Part shall — (a) subject to paragraph (b) and to any notice in terms of Section 4, apply to agreements relating to movables under which the purchase price does not exceed four thousand rand; and (b) not apply to any agreement under which the Government is the seller. (2) This Part shall not apply to any agreement entered into before the 16th May, 1969, save that sections 11, 13, 14, 15 and 20, in so far as they relate to actions commenced after the commencement of this Act, shall apply also in respect of agreements in force at and entered into before such date, under which the purchase price does not exceed the sum of four thousand rand.

Power of Minister in regard to terms of agreements and application of Act.

4. (1) The Minister may by notice in the Gazette — (a) prescribe the portion of the cash price of any movables which shall be paid as contemplated in section 9(1)(a); (b) prescribe the maximum period within which the purchase price under an agreement shall be payable; (c) prescribe that a portion or all of this Part shall apply to agreements, entered into after the relevant date in terms of subsection (3), relating to movables specified in such notice and of which the purchase price exceeds four thousand rand or exceeds that amount but does not exceed an amount so specified; (d) exempt from a portion or all of this Part all agreements, or any kind of agreement specified in such notice relating to movables belonging to a class or group of movables so specified. (2) In exercising the powers conferred on him by subsection (1) the Minister may make different provisions in respect of different classes of agreements or different classes or groups of movables. (3) A notice issued under subsection (1) shall come into operation on the date fixed therein which date shall not be earlier than one month from the date of the publication of such notice, if such notice has the effect of — (a) increasing the portion of the cash price referred to in paragraph (a) thereof; (b) fixing or reducing any period referred to in paragraph (b) thereof; and (c) making any part or all of this Act applicable to any agreements referred to in paragraph (c) thereof.

Prospective buyer to be informed of cash price of goods.

5. (1) Before any agreement is entered into the prospective seller shall state in writing to the prospective buyer, otherwise than in any note or memorandum of the agreement, a price at which the goods to which the agreement relates may be purchased from the seller for a cash amount in money: Provided that this subsection shall be deemed to have been sufficiently complied with — (a) if the buyer has inspected the goods or like goods and at the time of his inspection tickets or labels were attached to or displayed with the goods clearly stating the cash price, either of the goods as a whole or of all the different articles or sets of articles comprised therein; or (b) if the buyer has selected the goods by reference to a catalogue, price list or advertisement, which clearly stated the cash price either of the goods as a whole or of all the different articles or sets of articles comprised therein. (2) Any person who fails to comply with subsection (1) shall be guilty of an offence.

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Agreements to be in writing and copy to be supplied to buyer.

6. (1) No agreement shall be of any force or effect unless it is entered into in writing and signed personally by the buyer and by, or on behalf of, all other parties to the agreement. (2) The seller shall, within fourteen days of the making of any agreement, deliver or send a copy thereof to the buyer. (3) Any person who fails to comply with subsection (2) shall be guilty of an offence.

Contents of agreement.

7. (1) Every agreement shall contain — (a) a statement of the price at which the goods may be purchased by the buyer from the seller for a cash amount in money; (b) a statement of the amounts which are included in the purchase price and each such amount shall be separately specified opposite the matter in respect of which it is payable; (c) a statement of the amount payable by the buyer in pursuance of section 9(1(a); (d) a statement of the amount of each of the instalments by which the balance of the purchase price, after deduction of the amount paid by the buyer, is to be paid; (e) a statement of the date, or the mode of determining the date, upon which each such instalment is payable; (f) a description of the goods sold under the agreement and of any goods delivered to the seller under subsection (4) sufficient to identify them; and (g) the terms as to the reservation and passing of ownership in the goods, or as to the seller’s right to the return of the goods, as the case may be. (2) If a person as seller is a party to an agreement which does not substantially comply with subsection (1) he shall be guilty of an offence. (3) If in any proceedings under subsection (2) it is proved that the agreement in question did not comply with subsection (1), such agreement shall be deemed not to have complied substantially therewith unless it is proved that failure to comply therewith did not prejudice the buyer or any other person. (4) If after delivery to the buyer of the goods sold under an agreement, the seller and the buyer agree that those goods or any portion thereof be replaced by any other goods, the goods required in terms of subsection (1)(f) to be described in the agreement shall, as from the date on which such goods are replaced, be the goods to which the agreement relates as from that date.

Invalidity of certain provisions in an agreement.

8. (1) Subject to this section the following provisions in any contract shall be of no force or effect, namely any provision whereby — (a) any person undertakes to enter into an agreement; (b) any person acting on behalf of the seller in connexion with the conclusion of any agreement or the negotiations which precede the conclusion of such agreement, is constituted or deemed to be the agent of the buyer; (c) the seller is relieved from liability for any act, omission or representation of any person acting on his behalf in that connexion; (d) the liability of the seller, in pursuance of any guarantee or warranty which would, but for such provision, be implied in any agreement, is excluded or restricted; (e) the ownership in any goods to which any agreement relates will not pass upon payment of all the instalments payable in respect of such goods or, as the case may be, the buyer will be debarred from exercising any right to purchase the goods to which the agreement relates upon payment of all the instalments payable in respect of such goods before he may, in terms of such agreement, exercise such right;

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(f) any goods to which any agreement under which one or more instalments have been paid, relates, purport to be disposed of together with other goods to which any agreement superseding such agreement relates; (g) the seller or any person acting on his behalf is authorised to enter upon any premises for the purpose of taking possession of goods which have been sold under any agreement, or is relieved from liability for any such entry; or (h) the buyer chooses a domicilium citandi at a place not referred to in section 24. (2) Subsection (1)(a) shall not apply in respect of any contract relating to goods which are, in terms of the contract, to be imported into Swaziland for sale to the prospective buyer. (3) Subsection (1)(f) shall not be construed as if the seller and the buyer are prohibited from agreeing that the goods sold or any portion thereof be replaced by any other goods which are substantially of the same value and nature of the goods to be so replaced, if the other terms of the agreement are not altered as a result thereof.

Invalidity of certain agreements.

9. (1) No agreement in respect of the sale of a movable shall be of any force or effect — (a) until at least the appropriate prescribed portion of the cash price of such movable or, if no such portion has been prescribed, at least one-tenth of such price has been paid; and (b) unless the period, within which the full purchase price is payable does not exceed the appropriate prescribed period (if any). (2) For the purposes of subsection (1) — (a) payment of the appropriate portion of the cash price may be effected wholly or partly in goods; (b) no payment by means of a cheque shall, except to the extent to which the amount of such cheque has been paid to the seller or his order or his account with a bank or that of his order has been credited with such amount, be regarded as payment; and (c) no payment shall, to the extent to which it is made out of moneys borrowed directly or indirectly from or through the seller or any person whose business or part of whose business it is by arrangement with the seller to advance money for payments under agreements with the seller, and no payment in goods shall, to the extent to which the amount thereof exceeds a reasonable price for the goods, be regarded as payment. (3) An agreement which was valid when it was entered into and which is thereafter so altered that it becomes of no force and effect by virtue of subsection (1) shall for all purposes be deemed to have been invalid ab initio.

Inducement to enter agreement.

10. (1) Any employee, agent or representative of any prospective seller who, directly or indirectly, offers, gives or promises to any prospective buyer any benefit of whatsoever nature, as an inducement to enter into any agreement, shall, subject to subsection (2), be guilty of an offence. (2) Subsection (1) shall not apply to any benefit offered or promised in the ordinary course of business and by way of a proposed term of the agreement.

Obligation of seller and buyer to furnish information to each other.

11. (1) If the buyer makes a written request therefor to the seller and tenders to the seller ten cents for expenses, the seller shall, within seven days after the request is received, hand over to him or send to him by post to the address mentioned by him in the request a copy of the agreement and a statement showing — (a) the amount paid under the agreement by or on behalf of the buyer, (b) the amount due under the agreement and unpaid, the date upon which each unpaid instalment became due, and the amount of each such instalment, and (c) the amount which is to become payable under the agreement, the date or mode of determining the date upon which such future instalment is to become payable, and the amount of each such instalment.

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(2) While the agreement is in force the seller shall, not later than the last day of a period of two months after the agreement is entered into, and thereafter not later than the last day of each succeeding period of two months, hand over or send by post to the buyer a statement showing the total amount paid under the agreement and the amount which is still to become payable thereunder. (3) If at any time during the existence of an agreement the buyer or any other person who has or had possession of the goods sold under such agreement is requested thereto in writing by or on behalf of the seller or verbally by a deputy- sheriff or a messenger of the court he shall, in accordance with subsection (4), notify the person making the request — (a) of his residential and business address, (b) of the premises where the goods are ordinarily kept and of the name and address of the landlord (if any) of such premises, and (c) if the goods are no longer in his possession, of the name and address of the person in whose possession they are or to whom they were handed over, or of the place where they are. (4) Notification in terms of subsection (3) shall be effected — (a) in the case of a request by or on behalf of the seller, by registered letter sent to the person who made such request or, if such person assents thereto, by verbal information given to him, within seven days of receipt of such request; or (b) in the case of a request made by a deputy-sheriff or a messenger of the court, by verbal information given to him forthwith. (5) If at any time during the existence of an agreement — (a) the buyer changes his residential address; (b) the goods sold, or any part thereof, are or is removed from the place where such goods are ordinarily kept; or (c) the buyer loses or parts with possession of such goods; the buyer shall within fourteen days notify the seller in writing, in the event contemplated in paragraph (a), of such new address, and in the event contemplated in paragraph (b), of the premises to which such goods or part thereof have or has been removed, and of the name and address of the landlord (if any) of such premises, and in the event contemplated in paragraph (c), of the name and address of the person in whose possession such goods are or to whom they were handed over, or of the place where they are. (6) Any person who fails to comply with this section shall be guilty of an offence.

Cession or hypothecation of and authority to collect periodical income.

12. (1) Any cession or hypothecation to secure any payment under any agreement of so much of any periodical amount payable under a contract of service or towards the maintenance of any person, as in itself or together with any other portion of such amount which is subject to any prior cession or hypothecation to secure any payment under any other agreement exceed twenty-five per centum of the said amount, shall to the extent to which it is a cession or hypothecation in excess of such percentage of such amount be of no force or effect. (2) Any authority given to any person for the purpose of securing any payment under any agreement, by the person entitled to any such periodical amount, to receive or collect such amount or any part thereof, shall at all times be revocable.

Negotiable instrument.

13. (1) Any person who takes any negotiable instrument (other than a cheque which is not a post-dated cheque) knowing that it is or was given or drawn in respect of any liability under an agreement shall be guilty of an offence: Provided that this subsection shall not apply to any negotiable instrument taken in respect of any arrear instalments owing under an agreement. (2) Subsection (1) shall not affect the validity of any such instrument: Provided that any person who has in respect of any such instrument committed an offence under subsection (1) shall have no right of action on that instrument. 445

Limitation of seller’s right to enforce certain provisions of agreement.

14. (1) No seller shall, by reason of any failure on the part of the buyer to carry out any obligation under any agreement, be entitled to enforce any provision in such agreement for — (a) the acceleration of the payment of any instalment, unless an instalment or any part thereof which is not less than one-tenth of the purchase price, or two or more instalments which together are not less than one- twentieth of the purchase price, are due and unpaid; or (b) payment of any amount as damages, or for any forfeiture or penalty, or for the acceleration of the payment of any instalment, unless he has by letter handed over to the buyer or sent by registered post to him at his last known residential or business address, made demand to the buyer to carry out the obligation in question within a period stated in such demand, not being less than ten days, and the buyer has failed to comply with such demand.

Buyer’s right to be reinstated after return of goods to seller.

15. (1) If the seller has, as a result of the failure of the buyer to pay any instalment due under any agreement, recovered possession, otherwise than by an order of court, of any goods to which such agreement relates, the buyer shall except where he has himself terminated such agreement be entitled if he pays all arrears due under such agreement within a period of twenty-one days after the seller recovered possession of such goods to the return thereof at the seller’s place of business or, if he has no place of business or if the buyer so requests, at the premises in which such goods are kept, and to be reinstated in his rights under such agreement. (2) Any seller who fails to return any goods to a buyer in pursuance of an obligation under subsection (1) shall be guilty of an offence.

Buyer’s right to terminate agreement and to pay instalments before due date.

16. The buyer shall at all times be entitled — (a) subject to section 17(1)(b) and provided that he tenders to the seller the return of the goods, to terminate the agreement by giving written notice of termination to the seller; (b) to pay any instalment of the purchase price before it is due, and shall, if he pays the whole of the purchase price remaining unpaid (not being the last instalment of such purchase price) together with such interest as may have accrued up to the date upon which such payment is made, in one amount, be entitled to the reduction of each instalment not due at such date by an amount calculated at the rate of seven and half per centum per annum on such instalment in respect of the period by which the payment of such instalment is accelerated.

Buyer’s right upon termination, rescission or breach of agreement.

17. (1) If any agreement is terminated — (a) or rescinded the buyer shall, to the extent to which the seller would be placed in a better financial position than that in which he would have been if such agreement had expired after regular performance by the buyer of all his obligations thereunder, not be bound to make any payment or to perform any other act, and shall to that extent not incur the forfeiture of any payment; and (b) by the buyer under section 16(a) he shall, subject to any provision in such agreement for a lesser obligation be bound to place the seller in the financial position in which he would have been if such agreement had expired after regular performance by the buyer of all his obligations thereunder. (2) If the buyer fails to carry out any obligation under any agreement, or if any other contingency occurs upon the occurrence of which the seller is entitled, in terms of such agreement, to take any action against the buyer, and such agreement is not terminated or rescinded, the buyer shall not be bound to make any payment or to perform any other act by which the seller would be placed in a better financial position than that in which he would have been if the buyer had carried out such obligation or if such contingency had not occurred.

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Rights of parties to agreement if portion of goods are returned by arrangement.

18. If the seller agrees to the return to him by the buyer of a portion of the goods sold, and the value thereof at the time of such return — (a) is less than the amount of the purchase price still owing under the agreement, the difference shall be payable by the buyer within the unexpired portion of the period within which such purchase price is payable by him or within such other period as may be agreed upon; or (b) is more than the amount referred to in paragraph (a), the difference shall be refunded by the seller to the buyer.

Valuation of goods.

19. (1) If for the purposes of this Act or in connexion with any agreement, the value of any goods at any time after delivery or transfer of the possession thereof to the buyer, is to be ascertained, the parties concerned may, in the absence of agreement, jointly nominate a sworn appraiser to determine such value. (2) If the parties concerned cannot agree as to the person to be nominated, any of them may, after the expiry of ten days after having sent to the other at his last known place of business or residence by registered post a notice of his intention to do so, apply to the court for the appointment of an appraiser for such purpose, and if such application is made to a magistrate’s court and no action relating to or arising out of such agreement is pending before a superior court, such magistrate’s court shall, notwithstanding anything to the contrary in any law, but subject to section 24, have jurisdiction to make such appointment. (3) If any application is made in terms of subsection (2) by any of the parties concerned, the other may intervene in the proceedings to oppose or apply for the appointment of a particular appraiser. (4) If by virtue of subsection (2) more than one appointment is made for the same purpose, only the first appointment so made shall be valid for the purposes of this Act. (5) The determination of an appraiser nominated under subsection (1) or appointed under subsection (2) shall be final and binding upon all parties to the agreement. (6) This section shall not affect the powers of any court to determine the value of any such goods with reference to which no appraiser has been nominated under subsection (1) or appointed under subsection (2). (7) Any provision in any agreement whereby the parties thereto undertake to be bound by the determination, by a person mentioned in such agreement, of the value of the goods sold thereunder, shall be null and void.

Powers of court.

20. (1) In any action by the seller for the return of any goods to which any agreement relates, the court may, without prejudice to any other power make an order — (a) for the return of such goods to the seller subject to repayment by the seller of so much of the purchase price received by him, as may be found by such court to be just; (b) for the return of a part of such goods to the seller and in the case of an instalment sale agreement, for the retention by the buyer of, or in the case of a hire-purchase agreement, for the transfer to the buyer of the seller’s title to the remainder of such goods; (c) in the case of an instalment sale agreement, for the retention by the buyer of part of such goods, or in the case of a hire-purchase agreement for the transfer to the buyer of the seller’s title to part of such goods, and an order referred to in paragraph (e) in respect of the remainder thereof; (d) referred to in paragraph (b) subject to — (i) repayment by the seller of so much of the purchase price received by him, or (ii) payment by the buyer of so much of the unpaid balance of the purchase price, as the court may deem just; or

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(e) if it is not satisfied as to the value of the goods, requiring such goods to be sold,within a period stated in such order, by public auction by an auctioneer nominated by such court, or if the parties so agree, by private treaty. (2) No order shall be made in terms of subsection (1)(d)(ii), unless the buyer satisfies the court that such order will be carried out forthwith. (3) Any order referred to subsection (1)(e) shall state the total amount found by the court to be payable under the agreement, the total amount of payments so found to have been made thereunder and the party by whom the costs incidental to the sale shall be borne; and such court may, when making any such order, at the same time order the buyer to pay to the seller the deficiency referred to in subsection (5), if any. (4) If any goods are sold in pursuance of any order referred to in subsection (1)(e), the auctioneer or, in the case of a sale by private treaty, the seller, shall, after deducting any costs incidental to such sale awarded by the court against the buyer, any other costs so awarded and the total amount stated in such order to be payable under the agreement less the total amount of payments so stated to have been made thereunder, pay over the balance of the proceeds of the sale to the buyer: Provided that any costs incidental to such sale, which have been so awarded, shall be a first charge upon the proceeds of such sale. (5) If the net proceeds of the sale are insufficient to discharge the buyer’s liability in respect of any costs referred to in subsection (4) and his liability under the agreement, the seller may recover the deficiency by action in a competent court. (6) If damages have been awarded against the seller in the proceedings, the amount thereof or so much thereof as the court may determine, shall be deemed to have been paid by the buyer in respect of the purchase price of the goods, and thereupon the damages shall accordingly be remitted either in whole or in part. (7) On the institution of an action referred to in subsection (1) and pending the conclusion of the proceedings, the court may, in addition to any other powers, upon the application of the seller, make such orders as it deems just for the purpose of protecting the goods from damage or depreciation, including orders restricting or prohibiting the use of such goods or giving directions as to their custody.

Rights of parties after making of order of court in terms of section 20.

21. (1) If in any action referred to in section 20(1), the court has made any order referred to therein, the seller and the buyer may agree in writing that such order shall not be given effect to but that their agreement shall in all respects remain of force and effect as if such order had not been made. (2) If any order has been made and the buyer at a time when such agreement as is contemplated in subsection (1) between himself and the seller does not exist, pays any amount as an instalment under such agreement to the seller, the seller shall, within thirty days after the receipt by him of such amount, refund it to him. (3) No such order in respect of which the seller and the buyer have so agreed, shall be a bar to any other action referred to in section 20(1) in respect of the agreement to which such order relates, or affect the power of a court to make in any such action any order referred to in the said subsection. (4) Any person who contravenes subsection (2) shall be guilty of an offence.

Automatic interdict against removal or use of goods.

22. (1) When a summons is issued by a seller in any proceedings in connexion with or arising out of an agreement, he may include a notice in such summons whereby every person is prohibited from using the goods in question or removing them from the place where they are when such summons is served, or allowing them to be used or removed from such place by a person other than the plaintiff or a deputy-sheriff or a messenger of the court. (2) Such notice shall operate as an interdict restraining any person having knowledge thereof from using or removing any such goods or allowing them to be used or removed. (3) Any person affected by such notice may apply to the court to have it set aside. (4) Any person who wilfully disobeys or fails to comply with any such notice shall be guilty of an offence.

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Decrees of civil imprisonment and garnishee orders.

23. No decree of civil imprisonment or garnishee order for the purpose of enforcing payment by the buyer of any amount payable under an agreement or as a result of the termination or rescission thereof or as damages for any breach thereof, shall be made by any court.

Jurisdiction.

24. No court other than the court within whose area of jurisdiction is situate the place where the buyer is, at the time of the institution of the proceedings in question, or where he is ordinarily resident or employed or ordinarily carries on any business, profession, trade or calling, shall, except with the consent of the buyer given specifically in writing with reference to the proceedings in such court, have jurisdiction in any civil matter relating to or arising out of any agreement: Provided that this section shall not apply if there is no place in Swaziland where the buyer is so resident or employed, or does so carry on any business, profession, trade or calling, or if no such place is known to the plaintiff.

Waiver of rights by buyer.

25. No waiver, whether expressed or implied, by a buyer of any right under this Act shall be of any force or effect.

Penalties.

26. A person convicted of an offence specified in — (a) section 5(2) shall be liable to a fine not exceeding fifty emalangeni or, in default of payment thereof, imprisonment not exceeding three months; (b) section 6(3) shall be liable to a fine not exceeding fifty emalangeni or, in default of payment thereof, imprisonment not exceeding three months; (c) section 7(2) shall be liable to a fine not exceeding one hundred emalangeni or, in default of payment thereof, imprisonment not exceeding six months; (d) section 11(6) shall be liable to a fine not exceeding one hundred emalangeni or, in default of payment thereof, imprisonment not exceeding six months; (e) section 13(1) shall be liable to a fine not exceeding one hundred emalangeni or, in default of payment thereof, imprisonment not exceeding six months; (f) section 15(2) shall be liable to a fine not exceeding one hundred emalangeni or, in default of payment thereof, imprisonment not exceeding six months, or both; (g) section 21(4) shall be liable to a fine not exceeding fifty emalangeni or, in default of payment thereof, imprisonment not exceeding three months; (h) section 22(4) shall be liable to a fine not exceeding one hundred emalangeni or, in default of payment thereof, imprisonment not exceeding six months, or both.

PART II

IMMOVABLE PROPERTY

Non-applicability of Part I.

27. The provisions of Part I shall not apply to this Part.

Rights of buyer of immovable property who has paid part of the purchase price.

28. (1) A buyer of immovable property who has agreed to pay the purchase price thereof in more than two instalments at specified periods and who, in pursuance of such agreement has paid to the seller of such property not less than fifty per centum of the purchase price shall be entitled to demand from the seller, in writing, transfer of such property against registration in favour of the seller of a first mortgage bond over such property to secure the balance of the purchase price and interest, if any, payable in terms of the agreement. 449

(2) If the seller of such immovable property fails or refuses to give transfer thereof to the buyer within a period of three months of the receipt by him of a demand made under subsection (1), the buyer may cancel the agreement and recover (against the return of the property if the seller is not in possession thereof) from the seller the total amount paid by him to the seller in pursuance of such agreement together with any damages he has sustained.

Application of this Part. 29. (a) This Part shall not apply to any agreement in which the Government is the seller of immovable property; and (b) this Part shall not apply to any agreement for the purchase of immovable property entered into before the commencement of this Act.

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THE LIQUOR LICENSES ACT Commentary

This is an Act providing for legislation as to liquor licensing and matters incidental thereto. The Act establishes a liquor licensing Board for the determination and consideration of applications for, or relating to, the grant or renewal or transfer or removal of any liquor License.

A yearly License according to section 4 expires on the thirty first (31st) day of December of the year for which it is issued or renewed.

The board sits in public at such places and times as the chairman may, by notice published in the gazette, fix. At least one meeting of the board, the annual meeting has to be held in November or December of each year. A special meeting of the board may be convened by the chairman in any month other than the months of May, June, November and December for the purpose of considering an application for the granting of a provisional authority.

In considering an application the board takes into consideration; the character, financial standing and place of residence of a applicant; the encouragement of tourists; the public need for the License in the locality having regard to the number of licensed premises and the provision generally, of a high standard of hotel accommodation, service and meals.

Upon determination of the application, the board communicates its decision to the regional administrator of the region concerned and the communication is deemed to be authority for the issuance of the requisite License. If the board refuses to grant, renew, remove or transfer a License, it has to give the reason for the refusal in writing. An applicant or objector who is aggrieved by the decision of the board may within twenty one (21) days of such decision appeal to the Minister, whose decision shall be final.

An application must be made on or before the first day of October if the application is to be heard at an annual meeting, or before the first day of April if the application is to be heard at a mid-year meeting.

A person who sells, or deals in liquor without a License is guilty of an offence and liable on first conviction to a fine not exceeding two hundred Emalangeni (E200.00) or on default, imprisonment not exceeding twelve (12) months; on second or subsequent conviction to a fine not exceeding four hundred Emalangeni (E400.00) or, in default of payment imprisonment not exceeding two (2) years or both.

The Act is accompanied by regulations which must be read carefully by every person intending to make an application to the Liquor Licensing Board.

The Liquor Licenses Act, 1964

Date of commencement: 1st September, 1964

Arrangement of Sections 1. Short title. 2. Interpretation. 3. The authority to grant, etc., Licenses and its powers. (Schedule) 4. Period of License. 5. Not applicable to Government training institute. 6. Establishment of Liquor Licensing Boards.

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7. Disqualification for membership of Boards. 8. Sitting of Boards. 9. Special meetings of Boards. 10. Functions of Boards. 11. Procedure of Boards. 11bis. Appeals. 12. Review of Board’s proceedings. 13. Restriction on civil liability. 14. Applications for License. 15. Objections. 16. Interim applications. 17. Report on application. 18. Report by medical officer. 19. Refusal to renew. 20. Suitability of premises. 21. Dealing without License. 22. Breach of terms of License. 23. Prohibition of employment of certain persons. 24. Search and seizure. 25. Posting of intemperates. 26. Right of ejectment. 27. Miscellaneous offences. 28. Forfeiture of Licenses. 29. Evidence and proof. 30. Forfeitures. 31. Sales by sheriff or messenger. 32. Manufacture of liquor. 33. Requirements in respect of certain classes of spirits. 34. Prohibition on use of certain names or description for brandies. 35. Prohibition on addition of unauthorised substances to certain articles. 36. Alcoholic strength of certain potable spirits. 37. Labelling of brandy, whisky, rum, etc. 38. Labelling of mixed spirits. 39. Labelling of rectified spirit and certain other spirits. 40. Colouring, flavouring or adulteration of rum. 41. Prohibition on sale of compounded gin. 42. Savings as to reduction of strength and flavouring and colouring of spirits. 43. Offences by manufacturers or distillers. 44. Limitation of License-holder’s liability in respect of property of customers. 45. Management and responsibility. 46. Restriction on credit sales of liquor. 47. Closure of licensed premises.

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48. Contracts. 49. Regulations. 50. Repeal. Schedule.

An Act to provide for legislation as to liquor licensing and incidental or connected matters.

Short title.

1. This Act may be cited as the Liquor Licenses Act, 1964.

Interpretation.

2. In this Act, unless the context otherwise requires —

“African beer” means — (a) the drink commonly known as utshwala and brewed solely from sorghum or maize or a mixture of both, and water; (b) the beverages known as buganu and injemane; and (c) a beverage of a proprietary nature — (i) made in accordance with the directions issued by the proprietor, and (ii) declared by the Minister, by notice published in the Gazette, to be African beer; but does not include — (d) African beer to which has been added sugar, honey, syrup or other substance likely to induce or increase fermentation; (e) the concoctions commonly known as sigomfane or sikokiyane or keyeyi, quedviki, qali, ishimiyane, hemen, mankantshana and babutini and such concoctions as the Minister may in his discretion, specify by notice published in the Gazette; (f) a beverage, other than utshwala, containing more than three per centum by volume of alcohol;

“authority” means authority, under section 3, for the grant, renewal, removal, or transfer of a License;

“bar” in relation to licensed premises, means that part of those premises in which liquor is exposed for sale, and there is a counter where liquor is served for consumption on those premises;

“blended whisky” means whisky containing not less than twenty-five per cent of malt whisky and not less than thirty parts by weight of compound ethers, calculated as ethyl acetate, point eight five parts of furfural, and one hundred and twenty parts of higher alcohols calculated as amyl alcohol, per one hundred thousand parts of alcohol; (Added A.4/1972.)

“Board” means a Liquor Licensing Board established under section 6;

“bona fide traveller” means, in the case of an hotel situated — (a) in an urban area, a person who has travelled from beyond the boundary of such area; and (b) outside an urban area, a person who has travelled a distance of not less than five miles; and who is not resident within five miles of the hotel in question;

“brandy” means a distillate of an alcoholic strength not less than forty-three per cent of alcohol by volume or lower than twenty-five degrees under proof, resulting from the distillation solely of wine; (Added A.4/1972.)

“cane spirit” means the rectified spirit of an alcoholic strength not lower than twenty-five degrees under proof, resulting from the distillation solely of the fermented juice of sugar cane or of molasses; (Added A.4/1972.)

“Chairman” means the Chairman of the Board; 453

“compound gin” means grain or other spirits of an alcoholic strength not lower than twenty-five degrees under proof, flavoured after distillation by means of oils or essences in such a manner as to resemble gin; (Added A.4/1972.)

“clerk” (Definition of “clerk” deleted A.17/1981.)

“excise officer” has the meaning of “officer” in the Customs and Excise Act, No. 21 of 1971;

“forfeited” means forfeited to the government;

“fortified wine” means unfermented, fermented or concentrated juice of fresh grapes (including vermouth and aromatic wines) or of dried vine products, to which a wine brandy or grape brandy has been added;

“gin” means a distillate of an alcoholic strength not lower than twenty-five degrees under proof resulting from the distillation of a fermented mash of cereal grain or the re-distillation of any class of spirits with juniper berries, either with or without the addition of common salt and harmless aromatic plants and seeds; (added A.4/1972)

“grape brandy” means a distillate of an alcoholic strength not lower than twenty-five degrees under proof, resulting from the distillation solely of grape juice together with husks; (Added A.4/1972)

“holder of a License” or “holder of the License” means person licensed;

“intemperate” means person the subject of an order made under section 25;

“License” or “liquor License” means a License granted under this Act, and “licensed” has a corresponding meaning;

“licensed hours” means the hours prescribed for the sale or supply of liquor;

“licensed premises means premises the subject of a License;

“liquor” means spirits, including methylated spirits, wine, ale, beer, porter, cider, perry, African beer, or other fermented, distilled, spirituous or malt liquor of an intoxicating nature, or a drink with which such a liquor is mixed;

“liqueur” means a beverage of an alcoholic strength not lower than thirty per cent of alcohol by volume and which contains not less than thirty grammes of sugar per litre, produced either — (a) by masceration in rectified spirits or in brandy, or fresh or dried fruit or peels of aromatic plants, leaves, herbs, roots or seeds, to which has been added subsequently a syrup made of pure cane sugar or honey; or (b) by re-distillation of a mascerated extract, prepared as described in paragraph (a), to the resulting distillate of which a syrup made of pure cane sugar or honey has been added; (Added A.4/1972.)

“malt liquor” means ale, beer, porter or other malt liquor of an intoxicating nature;

“malt whisky” means whisky derived solely from malt by pot still distillation, and containing at least two of the following constituents in proportions not lower than those specified below, namely, compound ethers calculated as ethyl acetate, not less than forty-five parts by weight, furfural not less than three “point” five parts and higher alcohols (calculated as amyl alcohol) not less than one hundred and eighty parts per one hundred thousand parts of alcohol, and, where the quantity of furfural falls below the quantities specified herein, containing such a quantity thereof as is not less than one-eightieth of the quantity of higher alcohols, and, where the quantity of furfural is not less than the quantity so specified, containing a quantity of higher alcohols not less than forty times the quantity of furfural; (Added A.4/1972.)

“Minister” means the Minister for Home Affairs; (Amended A. 17/1981.)

“mixed spirits” means a mixture (other than whisky, malt whisky or blended whisky to which sherry wine has been added in terms of section 42(g) of an alcoholic strength not lower than twenty-five degrees under

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proof, of two or more kinds of spirituous beverages or liquors derived by distillation from different sources; (Added A.4/1972.)

“objector” means person who has lodged an objection in accordance with section 15;

“officer of customs” has the same meaning as in the Customs and Excise Act, No. 21 of 1971;

“orange fermented beverage” means a beverage of an alcoholic strength not lower than two point five per cent and not higher than fourteen per cent of alcohol by volume and a total residual sugar content (expressed as dextrose) of not higher than thirty-five grammes per litre and which shall have been obtained solely by the alcoholic fermentation of the juice of fresh oranges or the diluted concentrate of such juice or of such juice together with such diluted concentrate; (Added A.4/1972.)

“proof” means the strength of proof after distillation as ascertained by Sikes’ hydrometer; (Added A.4/1 972.)

“rectified spirit” means a purified spirit of an alcoholic strength not lower than twenty-five degrees under proof, obtained and purified by distillation with a rectifying or fractionating column; (Added A.4/1972.)

“removal” in relation to a License, means removal from the licensed premises to other premises;

“rum” means an unrectified distillate of an alcoholic strength not lower than twenty-five degrees under proof, and not higher than forty-five degrees over proof, resulting from the distillation of the fermented juice of sugar cane or of molasses, and whereof the volatile constituents, other than water, are derived solely from those materials, and include not less than one hundred and twenty parts of compound ethers, calculated as ethyl acetate, per hundred thousand parts of alcohol; (Added A.4/1972.)

“Secretary” means the Secretary to a Board; (Added A.17/1981.)

“spirit aperitif” means rectified spirit or brandy to which herbs or any natural extract of herbs has been added, with or without the addition of any other natural aromatic flavouring substances or of cane sugar, and which has an alcoholic strength not lower than twenty-four per cent of alcohol by volume, and the taste, aroma and other qualities which are generally characteristic of spirit aperitif; (Added A.4/1972.)

“spirit cocktail” means rectified spirit or brandy to which egg and any natural aromatic flavouring substances have been added, with or without the addition of milk or of cane sugar, and which has an alcoholic strength not lower than twenty-four per cent of alcohol by volume, and the taste, aroma and other qualities which are generally characteristic of egg cocktail; (Added A.4/1972.)

“spirits” includes all descriptions of brandy, orange fermented beverage, whisky, liqueur, rum, cane spirit, vodka, mixed spirits, fortified wine, wine spirit, rectified spirit, spirit aperitif, spirit cocktail, or gin, or any other beverage prescribed by the Minister by notice in the Gazette to be included in this definition; (Added A.4/l 972.)

“still” means an apparatus capable of being used in the distillation of liquor, by which volatile matter is separated by means of heat from the substance in which it is contained and is then recondensed into liquid form, or a part of such an apparatus;

“unfortified wine” means unfermented, fermented or concentrated juice of fresh grapes (including vermouth and aromatic wines) or of dried vine products, to which a wine brandy or grape brandy has not been added or, if added for the purpose of preservation, if the alcoholic strength of that wine is not thereby increased by more than one degree proof strength per annum, per imperial gallon;

“vodka” means rectified spirit, whether or not treated after distillation with charcoal, which has no distinctive aroma, taste or colour and has an alcoholic strength not lower than twenty-five degrees under proof; (Added A.4/1972.)

“whisky” means spirituous liquor of an alcoholic strength not lower than twenty-five degrees under proof, derived from grain by fermentation and distillation, and whereof the volatile constituents, other than water, are derived solely from grain; (Added A.4/1972.)

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“wine” means fortified or unfortified wine;

“wine brandy (cognac type)” means a distillate of an alcoholic strength not lower than twenty-five degrees under proof resulting solely from the distillation of wine distilled at not higher than twenty-two degrees over proof, and whereof the volatile constituents, other than water, are derived from such wine and include not less than one hundred and twenty-five parts of higher alcohols calculated as amyl alcohol and three hundred parts of total secondary constituents per hundred thousand parts of alcohol. (Added A.4/1972.)

The authority to grant, etc., Licenses and its powers. (Schedule)

3. (1) A Board may in accordance with this Act grant, renew, remove or transfer the types of License referred to in column two of the Schedule and appearing immediately opposite to the numbers 1 to 8, inclusive, shown in column one thereof. (2) The Minister may — (a) notwithstanding anything in this Act, grant an exclusive License of a type referred to in the Schedule by the numbers 9 (brewer’s License) and 10 (African beer manufacturing and wholesale License) to any person for such period not exceeding ten years as he may deem fit; (b) grant to any person a License of a type referred to in paragraph (a) or of a type referred to in the Schedule by the numbers 11 (canteen License) and 12 (employer’s License) for a period referred to in section 4; (c) renew, for a period referred to in section 4 or authorise the removal or transfer of any of the types of Licenses referred to in paragraphs (a) or (b): Provided that during the currency of an exclusive License issued under this subsection, no License of the same type may be granted. (Amended A.8/1967; A.17/1981.) (3) A Regional Administrator may, in respect of his region, grant, renew, remove or transfer the types of License similarly referred to by the numbers 13 to 15, inclusive. (4) The Minister or, as the case may be, the Regional Administrator may grant or refuse an application for a type of License grantable by him, or the renewal or transfer or removal thereof and his decision shall be final. (5) The Minister may on written application to him and in such form and subject to such conditions as he may impose, grant, renew, remove or transfer a spirits manufacturer’s License. (Added A.4/1972.)

Period of License.

4. (1) A yearly License shall expire on the thirty-first day of December of the year for which it is issued or renewed. (2) A half-yearly License may be issued after the thirtieth day of June in a year with effect until and including the thirty-first day of December in the same year, and at half the charges for a yearly License. (3) The holder of a License granted under the repealed Liquor License Proclamation shall in all respects be subject to this Act, and any special condition imposed on such License, be deemed to have been imposed under this Act in so far as such condition would be lawful under this Act. (4) This section shall be without prejudice to the License obtainable under section 19.

Not applicable to Government training institute.

5. This Act shall not apply to any hotel or bottle store attached thereto if the Minister has issued a certificate that such hotel or bottle store is being conducted as a bona fide training institute by the Government: Provided that sections 22, 23, 24, 25, 26, 27, 29(5), 32, 45(5) and (7), 46, 47 and any regulations made by the Minister in terms of section 49 relating to the type of liquor to be sold and supplied and the imposition of licensing hours shall mutatis mutandis apply in the same way as if the premises were licensed in terms of this Act: and, Provided further that the Minister shall designate a public officer to conduct such hotel or bottle store who shall for the purposes of this proviso be regarded as the holder of a License under this Act. (Added A.6/1972.)

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Establishment of Liquor Licensing Boards.

6. (1) Liquor Licensing Boards for the determination and consideration of applications for, or relating to, the grant or renewal or transfer or removal of any such License for the sale of intoxicating liquor referred to in section 3(1) and for such other purposes as may be prescribed are hereby constituted in and for each region. (2) Subject to section 7, each board shall consist of — (a) the Chairman, who shall be a public officer designated for the purpose by the Minister; (b) the Regional Administrator of the region concerned; (c) the public officer serving as tourist officer in the government and a public officer designated by the Principal Secretary, Ministry of Economic Planning and Development; (d) such other persons, not exceeding three, who reside or carry on business in the region concerned as the Minister may by notice in the Gazette appoint for each region and who are able and willing to serve as members thereof. (Amended A.14/1971.) (3) For the dispatch of business, the Chairman and two other members of a Board shall constitute a quorum. (4) Where a quorum is not present at a sitting of a Board, the sitting shall be adjourned from day to day until a quorum can be present to hold the sitting. (5) The decision of the majority of the members present shall be the decision of a Board and, in the case of an equality of votes, the person presiding shall have the casting as well as a deliberative vote. (6) The Minister shall appoint an officer to perform the duties of clerk to the Board. (Amended L.N. 38(6)/1967.)

Disqualification for membership of Board.

7. (1) A person shall be disqualified from becoming a member of a Board or, if he is a member of a Board, shall cease to be a member of a Board, if he — (a) is an applicant for, or the holder of, a liquor License, or, (b) subject to subsection (2), has a financial interest, either direct or indirect, in any licensed premises situated in Swaziland or in an application for a License, or (c) is an unrehabilitated insolvent, or (d) is a person who, within or without Swaziland, has been sentenced by a court in respect of an offence involving, in the opinion of the Minister, serious moral turpitude and in respect of which he has not received a free pardon. (2) The Minister may direct that subsection (1)(b) shall not apply to particular persons. (3) If a member of the Board is related, within the first degree of consanguinity or affinity, to an applicant for a License the member shall, for the purposes of the application, cease to be a member of the Board unless the Minister otherwise directs.

Sitting of Boards.

8. (1) A Board shall sit in public at such times and places as the Chairman may, by notice published in the Gazette, fix for the consideration and determination of applications, in accordance with this Act, for the grant, renewal, transfer or removal of liquor Licenses or approval of alterations to licensed premises. (Amended L.N. 38(6)/1967.) (2) At least one meeting of a Board, to be known as the annual meeting, shall be held during November or December of each year and, provided that there is a matter for consideration by it, a further meeting, to be known as the mid-year meeting, shall be held during May or June of each year. (3) A Board may sit at such place within Swaziland, and adjourn a sitting to such time or place, as it considers expedient.

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Special meetings of Boards.

9. (1) A special meeting of a Board may, subject to this Act, be convened by the Chairman in any month other than the months of May, June, November and December for the purpose of considering an application for the granting of a provisional authority in terms of section 10(5). (2) Such meeting shall not be convened by the Chairman unless he is satisfied that it would cause undue hardship or prejudice to the applicant if he were to wait until the annual or mid-year meeting of a Board, and that for reasons beyond his control such applicant was unable to make the application at an ordinary meeting of a Board held immediately prior to the date of his application. (3) Any person desiring the Chairman to exercise his discretion in terms of subsection (2) shall make a written application addressed to the Chairman, accompanied by payment of a fee of R100.00: Provided that in the event of the Chairman refusing to grant such application, seventy-five per cent of such fee shall be refunded to the applicant. (4) The Chairman may at any stage call upon the applicant to deliver to him an affidavit deposed to by him or any other person in support of the application referred to in subsection (3), and may require the applicant to appear before him to make oral representations or give evidence under oath. (5) Within ten days from the date of the granting of an application for a special meeting, the applicant shall apply to the Board for such provisional authority and sections 14 and 15 shall mutatis mutandis apply to such application. (Added A.2/1972.)

Functions of Board.

10. (1) A Board may grant or refuse — (a) an application for the grant or renewal of a License grantable by the Board; or (b) the transfer or removal of such License (including the confirmation or otherwise of the exercise by the Chairman of his powers under section 16(1)); (c) an application made under section 20(7) for the approval of a Board of a proposed alteration to premises or in the use of a part thereof. (2) In considering an application under this section a Board shall, in particular, subject to section 20, have regard to the following matters — (a) the character, financial standing and place of residence of the applicant; (b) the public need for the License in the locality or generally in Swaziland having regard to — (i) the number of licensed premises, and (ii) the provision, generally, of a high standard of hotel accommodation, service and meals; and (c) the encouragement of tourists. (3) Upon determination of the application, a Board shall communicate its decision to the Regional Administrator of the region concerned and such communication shall be the authority for the issuance of the requisite License. (4) If after lodgment of an application for the renewal of a License in terms of section 14, and prior to the date fixed for consideration of the application, a person sells or otherwise disposes of the business in respect of which the application is made, the Board may grant the renewal of the License in respect of such business to the person to whom it has been sold, or otherwise disposed of. (5) If an applicant has not erected the premises for which the License is applied at the date of hearing of his application, a Board shall, if it approves the application, grant provisional authority for the issuance of the requisite License, which the Regional Administrator concerned shall not issue until such time as he is satisfied that the applicant has — (a) completed the building according to his plan approved by the Board; and (b) complied with any conditions or restrictions that may have been imposed by the Board. (6) If a Board refuses to grant, renew, remove or transfer a License, it shall give the reason for the refusal which shall be in writing if so required by the applicant or any objector. 458

(7) Subject to any regulations, the Board may on application to it for the grant, renewal, removal or transfer of a License, impose or confer upon the holder thereof such conditions and privileges as appear suitable. (8) Any conditions and privileges imposed or conferred shall be endorsed on the License and they shall be deemed to form part of the License. (9) Failure to endorse a condition or privilege upon a License shall not relieve the holder thereof from any kind of obligation in respect of the condition or privilege. (10) Notwithstanding this Act or any other law, the Minister may, for the purpose of controlling the consumption of liquor, issue directions, including directions to revoke a License already granted on the coming into operation of this Act, to any Board and the Board shall comply therewith. (Added A.17/1981; amended A.6/1982.) (11) Where a License is revoked under subsection (10), the Board shall issue a notice of revocation of six months or more as the Minister may determine to a holder of a License and such holder shall be entitled to a refund of any fee for the unexpired period of the License from the date specified in the notice for the expiry of such License. (Added A.6/1982.)

Procedure of Board.

11. (1) Subject to subsection (3), on the instructions of the Chairman the Secretary shall by written notice under his hand require the attendance before the Board of any person — (a) who has made application for a new License or the renewal, transfer or removal of a License, or, (b) in the case of the absence of the holder of a License, who, in the absence, is charged with the conduct of the business carried on under that License, or, (c) who, in the opinion of the Chairman, at his own instance, or at the instance of an applicant or an objector, can testify as to any matter the Board has to determine. (Amended A.17/1981.) (2) The Secretary may on the instructions of the Chairman by written notice require that such applicant or person produce any book, paper or other document in his possession or under his control, and which may be relevant to the matter before a Board. (Amended A.17/1981.) (3) If an application is made for the renewal of a License in accordance with section 14 and no objection to the renewal is lodged in accordance with section 15, the Chairman may, in his discretion, grant the application, if he is satisfied as to those matters which a Board in dealing with such an application has to take into consideration, or may refer the application to the Board. (4) Any person who refuses or fails without good cause to attend and give evidence before a Board at the time and place specified in a notice given under this section, or to produce a book, paper or other document, he has been required by such notice to produce, shall be guilty of an offence and liable, on conviction, to a fine not exceeding twenty emalangeni or, in default of payment thereof, imprisonment not exceeding six weeks. (5) If a Board considers it necessary to take evidence respecting a question to be determined by it, such evidence may, in the discretion of the Board, be given on oath (which oath the person presiding is hereby authorised to administer) and shall be filed of record in the office of the Chairman. (6) A Board may of its own motion take notice of a matter or thing which in the opinion of its members constitutes an objection to the granting, renewal or transfer of a License although no person has made any objection to it: Provided that it shall inform the applicant of such matter or thing, and, should the applicant so request, adjourn, the further consideration of the application for such reasonable period as it may consider suitable in order that the applicant may have an opportunity of replying to the objection. (7) An applicant or objector may as of right, appear in person before a Board or be represented by a person authorised in writing by him, and call evidence in support of his application or objection. (8) Except where otherwise specially provided in this Act, the Chairman shall determine the procedure to be adopted in the case of a sitting to consider applications.

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Appeals.

11bis. An applicant or objector aggrieved by the decision of a Board in respect of the grant of, or refusal to grant, renew, remove or transfer a License or in respect of any conditions or privileges attached to a License may, within twenty-one days of such decision, appeal to the Minister whose decision shall be final and shall not be questioned in any court. (Added A.17/1981.)

Review of Board’s proceedings.

12. (1) On the petition of an applicant or objector, the High Court may review a proceeding of a Board if it appears to it that — (a) in the proceedings in question the Board exceeded its powers, or failed to take into consideration matters which it was its duty to consider or otherwise failed to perform a duty, or exercised its powers in an arbitrary, mala fide or grossly unreasonable manner, or a point of law arose which such Court should determine; or (b) a person, who was disqualified from being a member, or, if a member disqualified from taking part in the proceedings in question, took part in such proceedings. (2) Subject to subsection (3), if, upon the consideration on review of a proceeding of the Board, the Court finds good grounds for the review, it may — (a) set aside the proceedings in question; and (b) make such order as it considers fit, including an order that a special meeting of the Board be convened for the rehearing in accordance with the directions of the Court or reconsideration of the matter or the taking of further evidence. (3) A proceeding shall not be set aside — (a) by reason of a formal or technical defect in a proceeding not, in the opinion, of the Court, resulting in substantial injustice; or (b) in any other case, unless the Court is satisfied that the matter proved caused, or was calculated to cause, substantial prejudice to the petitioner. (4) Unless substantial prejudice has been caused, the validity of a License granted by a Board shall not be affected merely by reason of the fact that a notice required by this Act was not duly posted, published or sent. (5) There shall be no appeal from a decision of the High Court under this section. (Amended A.17/1981.)

Restriction on civil liability.

13. A member of a Board shall not be sued in law for anything done, or omitted to be done, in the bona fide discharge of his duties under this Act.

Applications for License.

14. (1) With respect to a License prescribed to be grantable by the Board, any individual desiring to obtain a new License, or the renewal of an existing License, or the transfer of an existing License from the holder thereof, or the removal of an existing License from the licensed premises to other premises, shall on or before the first day of October, if the application is to be heard at an annual meeting, or the first day of April, if the application is to be heard at a mid-year meeting, lodge a written application with the Chairman of the Board at the office of the Minister for Home Affairs and copies thereof with the Commissioner of Police and the Senior Medical Officer of Health. (2) The application shall disclose — (a) the full name and nationality of the applicant, (b) the full name and address of the owner of the premises, (c) the full name and nationality of the responsible manager if he is not the applicant,

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(d) the name of the region and place and, in the case of an urban area, the name of the street and number of the lot in respect of which the business is desired to be carried on, (e) the nature of the License desired, and (f) any privilege, as to hours, desired with the License. (3) The application shall be supported — (a) in the case of a new License, or of a removal of a License, by a plan drawn to scale of the premises for which the License is applied, (b) in the case of the renewal of a License, by a plan drawn to scale showing any structural alteration to the premises, and any alteration in the use of any parts thereof, since the issuance of the previous License, (c) in the case of any kind of new club License, but subject to any regulations, by a copy of the rules of the club certified by the secretary thereof, and, in the case of a renewal only, such rules as have been added, altered or cancelled since the grant of the License, and, (d) in all cases, by a notification of the place or places at which liquor is to be stored. (4) The application shall also be supported by — (a) an affidavit of the applicant fully setting forth — (i) particulars of any tie by which the applicant is, or is proposed to be, bound in respect of the business conducted under the License; (ii) the name and address of a person, other than the applicant, having, or to whom it is proposed to grant, a financial interest in the business, and the nature and extent of such interest, or that no other person than himself has, or is to receive, a financial interest, if that be the case; and, (iii) in the case of any other club License, the number of members belonging to the club at the time of the application; (b) a true copy of any document by which the agreement respecting any such tie or financial interest was concluded; and (c) a true copy of any lease or contract under which the premises are held or are to be held, on which the licensed business is, or is proposed, to be carried on: Provided that this paragraph shall not apply to an application for a renewal of a License if the applicant, with his application, submits an affidavit setting forth that the particulars previously supplied in terms thereof remain unchanged. (5) Any application received after the first day of October, and before the first day of November, if it is to be heard at the annual meeting, or the first day of April, and before the first day of May, if it is to be heard at the mid-year meeting, may, in the discretion of the Chairman, receive consideration subject to the prior payment of a penalty of a fee of four emalangeni or such other amount in lieu thereof as may be prescribed. (6) Subject to subsection (7), at least twenty-one days before the meeting of the Board, the clerk shall at the cost of the Government, advertise all applications to be heard by the Board in a newspaper circulating in Swaziland, and cause a copy of such advertisement to be posted at the office of the Regional Administrator in respect of which the application is made. (7) Any application under section 16 shall be advertised by the clerk at the expense of the applicant in the same manner as provided in subsection (6).

Objections.

15. (1) A person may, either individually or jointly with others, object in writing to the granting, renewal or transfer of a License prescribed to be grantable by a Board. (2) At the request of the applicant, a Board may summon an objector to attend before it for the purpose of being examined on oath as to the grounds of the objection. (3) An objection to the granting, renewal or transfer of a License shall be lodged with the clerk and a copy of his objection sent by registered post to the applicant at least ten days before the sitting of a Board.

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Interim applications.

16. (1) In respect of Licenses prescribed to be grantable by a Board, and subject to subsection (2), the Chairman may, at any time consider an application for the transfer or removal of a License, and, subject to the confirmation of the Board at its next meeting, grant or refuse the transfer or removal applied for. (2) If the Chairman considers it expedient to do so, he may direct that the application be put before the Board for consideration.

Report on application.

17. (1) The Commissioner of Police, or such officer as he may authorise in writing, shall, not less than fourteen days before the sitting of a Board furnish the clerk with a written report on each application for such Licenses as may be prescribed for the purpose, and forward a copy thereof to the Regional Administrator of the region concerned, and the applicant. (2) The report shall contain the following particulars — (a) a description of the house, premises and furniture in question; (b) a statement as to whether the applicant is a fit and proper person to have the License applied for, and known to be of good character and repute; (c) a statement as to whether the applicant appears to be, or not to be, the true owner of the business or the premises proposed to be licensed; (d) if the application is for a renewal by a person having held the License during the whole or a part of the preceding year, a statement as to the manner in which the house has been conducted during such year or part thereof; (e) whether any convictions have been recorded against the person holding the License, or against the responsible manager if he is not the person holding the License and, if so, particulars of each conviction; (f) a statement as to the character of the person frequenting the house; and (g) the facts, in detail, upon which are based any conclusions or expressions of opinion. (3) If the officer submitting the report is unable to supply any of such particulars, he shall specifically state the reason for his inability in his report.

Report by medical officer.

18. (1) The Senior Medical Officer of Health, or such officer being a medical officer or health inspector as he may authorise in writing, shall, not less than fourteen days before the sitting of a Board — (a) furnish the clerk with a written report on each application for such Licenses as may be prescribed for the purpose, and forward a copy thereof to the Regional Administrator of the region concerned, and the applicant. (2) The report shall contain the following particulars — (a) a description of the condition of the house, premises, furniture, crockery and cutlery, in question; (b) an assessment of the adequacy, or otherwise, of the facilities for persons resorting to the house and premises, and employees of the establishment; (c) a list of improvements or repairs necessary to maintain the premises, house, furniture, crockery or cutlery at a modern public health standard; and, (d) if the application is for a renewal by a person having held the License during the whole, or a part, of the preceding year, a statement, from the point of view of health and hygiene, as to the manner in which the house and premises have been conducted during such year or part thereof. (3) A Board, the Chairman, a Regional Administrator, a medical officer, or health inspector, acting under the authority of the Senior Medical Officer of Health, may at all reasonable times inspect licensed premises and premises the

462 subject of an application for a License, and the person in charge of the establishment shall afford him all reasonable facilities for inspection.

Refusal to renew.

19. If a Board refuses the renewal of a License prescribed to be grantable by it and held by any person, and the person has not, during the preceding twelve months, been convicted of an offence against this or any other law relating to the sale of liquor, he shall, on payment of the proportionate part of the cost of a License such as has been held by him, be entitled to obtain a License for a period of three months after the expiry of the License the renewal of which has been refused.

Suitability of premises.

20. (1) Before granting an application for a License or for the renewal of a License, or for the removal of a License to other premises, a Board shall satisfy itself that the premises in respect of which the application is made, or, as the case may be, to which the License is to be removed, afford suitable and satisfactory accommodation for all purposes to which they may lawfully in terms of the License be put. (2) A License in respect of an hotel shall be granted only in respect of premises proved to the satisfaction of the Board to be provided with sufficient — (a) accommodation of a reasonable standard for travellers, (b) means of egress in case of fire, (c) suitable sanitary arrangements, conveniences and bathroom accommodation, (d) shelter for vehicles and motor conveyances, and (e) suitable accommodation for employees accompanying travellers, and hotel staff living on the premises. (3) All kitchens, pantries, dining-rooms and other places where food is cooked, stored or served, and all bedrooms, bathrooms and lavatories of licensed premises, shall be kept clean and in a proper state of repair, and the grounds thereof shall be kept tidy. (4) A License in respect of an hotel may be granted only in respect of premises in which rooms reserved for the sale of liquor are separated from any adjacent room in which other trade is carried on by a substantial wall or partition containing no door or other opening. (5) A License in respect of an hotel may be granted in an urban area only in respect of premises having the bar or public entrance in or towards a public street or thoroughfare, and sufficient floor accommodation for the convenience of the public. (6) The holder of a License shall not without the prior approval of a Board make or cause any structural alteration to the premises, and any alteration in the use of a part thereof to be made. (7) An application for approval of such alteration shall be supported by a plan, drawn to scale, indicating fully and clearly the proposed alteration. (8) If an application under subsection (7) cannot conveniently be made during a sitting of a Board in accordance with section 8, the Chairman may, after consultation with the Regional Administrator of the region concerned, approve the proposed alteration.

Dealing without License.

21. (1) Subject to subsection (2), a person who sells, or otherwise deals in, liquor without a License shall be guilty of an offence and liable — (a) on first conviction, to a fine not exceeding two hundred emalangeni or, in default of payment thereof, imprisonment not exceeding twelve months; and (b) on second or subsequent conviction, to a fine not exceeding four hundred emalangeni or, in default of payment thereof, imprisonment not exceeding two years or both. (2) In the case of a duly approved renewal of a License, subsection (1) shall not come into operation until the thirty- first day of January in the year following the expiry of the period for which a License is taken out. 463

(3) Upon conviction for an offence under subsection (1), all liquor found in the possession of the convicted person shall be, ipso facto, forfeited: Provided that in the case of a person who has been duly authorised to obtain the renewal of a License, but has omitted to do so immediately on expiry of his previous License, the forfeiture of liquor shall be at the discretion of the court in which the conviction took place. (4) The fact that an unlicensed person — (a) has a notice or sign upon, or in the vicinity of, his premises purporting that he is licensed; or (b) has a house or premises fitted up with a bar, or other place, containing bottles, casks or vessels, so displayed as to induce a reasonable belief that liquor is there sold or served for payment; or (c) keeps liquor concealed on those premises or more liquor than is reasonably required for the persons residing in them or for bona fide entertainment, shall be deemed to be prima facie evidence of a contravention of subsection (1). (5) Notwithstanding anything in this section to the contrary, the holder of a general dealer’s License, issued under a law relating to trading Licenses and endorsed in accordance with subsection (6), may sell methylated spirits to — (a) a person other than an intemperate, (b) an intemperate, if such person is in possession of a permit, which a Regional Administrator may, in his discretion grant in a form approved by him. (6) A Regional Administrator may in his discretion endorse a general dealer’s License to the effect that the person to whom it is issued is permitted to sell methylated spirits and may at any time cancel such endorsement.

Breach of terms of License.

22. (1) The holder of a License who sells or otherwise deals in liquor at a place other than the place at which he is authorised by the License so to deal, or during a time when he is not authorised so to deal, or in violation of any other condition of his License, shall be guilty of an offence and liable, on conviction to a fine not exceeding one hundred emalangeni or, in default of payment thereof, imprisonment not exceeding six months. (2) Subject to subsection (3), the holder of a License shall be guilty of an offence and liable on conviction to the penalties mentioned in subsection (1), if he stores liquor, or sells or otherwise deals in liquor — (a) in a room or place in which he or another person conducts a part of a general trader’s, general dealer’s, butcher’s, baker’s, greengrocer’s, or other, business; or (b) in a room or place not separated by a substantial wall or partition, without door or other opening, from which such business is conducted. (3) Nothing in this section shall prevent the sale of malt liquor and unfortified wine from the store of a general dealer licensed for the sale, or, if the sale would be otherwise lawful, the sale in a bar, or other place in which is authorised the sale of liquor, of mineral waters, tobacco, pipes, cigars, cigarettes and matches. (4) The holder of a License in respect of an hotel who, after sunset and during the hours after which the sale of liquor to the general public is allowed, fails to have a lamp affixed and kept burning over the front entrance to the bar, and in such a position as to light up the front entrance to the bar, shall be guilty of an offence and liable on conviction to the penalties mentioned in subsection (1). (Original section 22 repealed A.15/1971.)

Prohibition of employment of certain persons.

23. (1) The holder of a License shall not in a place where liquor is sold or stored employ — (a) an intemperate, (b) a person who, to the knowledge of the holder of the License has during the preceding five years been convicted in Swaziland of contravening a law relating to the selling of liquor without a License, or the selling, giving, or otherwise supplying or delivering of liquor to an intemperate; or

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(c) a person under eighteen years of age. (2) The holder of a License who contravenes subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred emalangeni or, in default of payment thereof, imprisonment not exceeding six months.

Search and seizure.

24. (1) Any excise officer, police officer of or above the rank of sub-inspector, or other police officer authorised for such purpose by a police officer of or above the rank of assistant superintendent, or a Regional Administrator, or other person authorised for the purpose by the Minister, may, at any reasonable time enter on any licensed premises, examine every room or part of those premises, and take stock of any liquor found there. (2) Any excise officer, police officer, or Regional Administrator, or other person authorised for the purpose by the Minister, may, at all times on proof or reasonable suspicion of the purchase, holding, conveyance, sale or supply of liquor, or of the possession of a still, in contravention of this Act — (a) enter on any premises and do all things necessary to make search for such liquor, or money used in the purchase of such liquor, or such still, or any other thing which may be material to the charge to be preferred, and such liquor, still, money or other thing may be seized by the officer conducting the search; (b) search any package, or other thing on any train, wagon or other vehicle or being conveyed in any way from one place to another, for such liquor or still; and (c) call upon a person reasonably suspected to be in unlawful possession of liquor or of a still to produce it, and, if he fails so to do, to search his person, clothing or other belongings. (3) If, in the course of a search made under this section, liquor or a still is found for which the permit required by law is not produced, the person authorised to search may seize and detain the liquor, all packages or other things in which it is contained, a wagon or other vehicle in which it is being conveyed, the still, any other things which may be material to the charge to be preferred, and if the person whose premises or other property searched is not the holder of a License, all marked money, liquor bottles, corks, funnels, glasses, or other utensils, used in connection with the storage or sale or distillation of liquor found there. (4) In the event of a conviction following upon any search and seizure made under this section, any articles so seized may, in the discretion of the convicting officer, be declared forfeited. (5) A person obstructing another person in the execution of his duties under this section shall be guilty of an offence and liable on conviction to a fine not exceeding twenty emalangeni or, in default of payment thereof, imprisonment not exceeding six weeks.

Posting of intemperates.

25. (1) The Regional Administrator may by written order prohibit the selling, delivering, or supplying of liquor to a person in his region who — (a) within the space of three months, has been three times convicted of an offence involving drunkenness; or, (b) having been twice so convicted, has also been convicted of an offence involving assault; or, (c) by excessive drinking of liquor, misspends, wastes or lessens his estate or greatly impairs his health or endangers the peace of his family. (2) Such order shall be in force, during such time as that Regional Administrator may fix, not exceeding a total period of twelve months in the region in which it was granted, and in another region into which that person may move or in which he may be. (3) The holder of a License shall be guilty of an offence if he with knowledge of such prohibition sells, gives, delivers or supplies liquor to an intemperate, or allows an intemperate, on his premises, to obtain liquor directly or indirectly. (4) Any person, not being a holder of a License, who with knowledge of such prohibition gives to, purchases or procures liquor for an intemperate shall be guilty of an offence and liable on conviction to the same penalties as prescribed in subsection (3).

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(5) A person to whom the sale, delivery or supply of liquor has been prohibited under this section, and who is found in possession of liquor shall be guilty of an offence and liable, on first conviction to a fine not exceeding fifty emalangeni or, in default of payment thereof, imprisonment not exceeding three months, and, on second or subsequent conviction, to a fine not exceeding one hundred emalangeni or, in default of payment thereof, imprisonment not exceeding six months or both. (6) Upon his conviction under this section, any liquor found in the possession of the offender shall ipso facto, be forfeited. (7) Any person to whom the sale, delivery or supply of liquor has been prohibited in terms of this section, and who, during the period of such prohibition is found in a bar or a room or passage from which there is direct communication to a bar by means of a door or other aperture shall be guilty of an offence and liable, on conviction, to a fine not exceeding fifty emalangeni or, in default of payment thereof, imprisonment not exceeding three months.

Right of ejectment.

26. (1) The holder of a License, or his servant or agent, may — (a) refuse to serve any person with liquor, and, (b) also, refuse to admit to, or expel from, the premises in respect of which his License is granted — (i) any person who is violent, quarrelsome, or disorderly, whether or not drunk; and (ii) any person whose presence on his premises would subject him to a penalty under this Act. (2) Such person who, upon being requested by the holder of a License or his servant or agent or a police officer, to quit the premises, fails or refuses to do so, shall be guilty of an offence and liable on conviction, to a fine not exceeding twenty emalangeni or, in default of payment thereof, imprisonment not exceeding six weeks. (3) On the demand of the holder of the License, his servant or agent, a police officer shall expel or assist in expelling such person from the premises, and may use such force as is reasonably necessary for the purpose.

Miscellaneous offences.

27. (1) The holder of a License shall be guilty of an offence and liable, on first conviction, to a fine not exceeding twenty emalangeni or, in default of payment thereof, imprisonment not exceeding six weeks and, on a second or subsequent conviction, a fine not exceeding fifty emalangeni or, in default of payment thereof, imprisonment not exceeding three months, if he — (a) allows a person under the age of eighteen years to be in a bar or to be in another place in which liquor is stored, or sold for consumption off the premises other than the premises of a general dealer licensed under a law relating to trading Licenses; (b) allows a person other than the owner of the licensed premises or a member of his family or his employee, to be in a bar or other place where liquor is kept or stored, during the hours when the sale of liquor is prohibited to the general public; or (c) sells liquor to a person already in a state of intoxication; or (d) permits drunkenness or violent, riotous or quarrelsome conduct on his premises; (e) suffers any unlawful game of gambling to be carried on, in or upon his premises; or (f) knowingly harbours or suffers a police officer to remain on his premises, except for the purpose of accommodation, during a time appointed for such officer to be on duty, unless such officer is there for the purpose of keeping or restoring order, or otherwise in the execution of his duties; (g) stores liquor at a place other than that stated in the application for his License or otherwise specifically approved by the Commissioner of Police; or, (h) being the holder of a License in respect of an hotel fails or refuses, except for some sufficient reason, to supply at reasonable charges lodgings, meals or other foods, or accommodation, to travellers and employees accompanying travellers, and shelter for their vehicles, including motor conveyances;

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(j) without having obtained the prior approval of the Board causes a structural alteration to be made to a part of the premises as designated in the License held by him; (k) subject to paragraph (a) and except at the request of the parent or guardian of the person sells or delivers or supplies or knowingly permits to be sold or delivered, liquor to a person under the age of eighteen years or permits such a person to drink liquor on his premises. (2) The holder of a License shall be guilty of an offence and liable on conviction to double the penalties provided in subsection (1), if he — (a) wilfully mixes or causes water or an injurious, poisonous or deleterious ingredient or material to be mixed with liquor in order to adulterate it for sale; or (b) manufactures or sells any article, to which this Act assigns a meaning, if there has been added a substance the addition whereof to that article is not expressly authorised by this Act; or (c) sells, or keeps for sale — (i) liquor with which has been mixed an ingredient or material injurious to the health of persons drinking the liquor; or (ii) a concoction specified by or under paragraph (e) of the definition “African beer” contained in section 2. (3) A person shall be guilty of an offence and liable, on conviction, to a fine not exceeding fifty emalangeni, or, in default of payment thereof, imprisonment not exceeding three months, if he is drunk, violent or disorderly upon licensed premises or is drunk in or in the vicinity of — (a) a road, street, lane, thoroughfare, outspan, urban area or market place, or (b) a shop, store, warehouse or public garage, or (c) a place of entertainment, cafe, eating-house, race-course, gymkhana, showground or other premises or place to which the public is granted or has access, whether or not the right of admission be granted on payment or reserved to a class of persons. (4) Any person, other than the owner of the licensed premises, his family or his employee, who, during the hours when the sale of liquor is prohibited to the public, is found in a bar or other place where liquor is kept or stored, shall be guilty of an offence and liable, on conviction, to a fine not exceeding twenty emalangeni or, in default of payment thereof, imprisonment not exceeding six weeks. (5) A person who, by falsely representing himself to be a lodger at an hotel, or a bona fide traveller, buys, obtains or attempts to buy or obtain liquor on licensed premises, during the hours when the sale of liquor is prohibited to the general public, shall be guilty of an offence and liable on conviction to a fine not exceeding twenty emalangeni or, in default of payment thereof, imprisonment not exceeding six weeks. (6) Any person shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred emalangeni or, in default of payment thereof, imprisonment not exceeding one year, if, after being duly sworn, he gives false evidence before a Board on a matter relevant to a question under inquiry by the Board knowing such evidence to be false, or not knowing it to be true. (7) Any person other than the holder of a spirit manufacturer’s License shall be guilty of an offence and liable on conviction to a like penalty to that prescribed by subsection (3), if without lawful excuse, he is found in possession of a still or part of a still, or a concoction specified by or under paragraph (e) of the definition “African beer” contained in section 2. (Amended A.4/1972.) (8) Any person who consumes liquor in a street in an urban area shall be guilty of an offence and liable on conviction to a like penalty to that prescribed by subsection (3).

Forfeiture of Licenses.

28. (1) Without prejudice to a power on any grounds to refuse a renewal of a License, the prescribed authority may, in its discretion, declare forfeited a License held by a person twice or more convicted of an offence under this or any other law relating to liquor.

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(2) Upon the second or subsequent conviction of a person under section 21 who, at the time of such conviction, does not hold a liquor License but holds a License or Licenses of another description in a region, the judicial officer presiding may order that such person shall — (a) forfeit the License or Licenses or any of them; (b) during the remainder of the current year, be disqualified from taking out another License; and, (c) for a term of years, or at any time, be disqualified from holding a License for the sale of liquor. (3) The penalties prescribed by this section shall be in addition to those prescribed by section 21.

Evidence and proof.

29. (1) If, in the course of a search undertaken pursuant to section 24, liquor or a still is found for which no valid authority is produced, the onus of proving that the liquor or still was lawfully purchased, imported, removed or held shall lie upon the owner or occupier of the premises in which it is found, or, if appropriate, the person conveying or otherwise in possession of it. (2) If a person is charged with an offence under section 27(7), and it appears to the court before which such person is so charged that an apparatus found in his possession is capable of being used for some other purpose, the onus of proving that the apparatus was not used for distillation of liquor shall lie upon the person so charged. (3) If a person is charged with dealing in liquor without a License, the onus of proving that he is the holder of a License shall lie upon that person. (4) In a trial for a contravention of section 27(2), or a matter in which it is sought to establish the alcoholic strength of liquor, or the nature of a liquid, by the evidence of an analyst, a certificate purporting to be under the hand of a qualified analyst employed by the Government or the Government of the Republic of South Africa shall be prima facie evidence of the fact stated in the certificate and, unless the court specially directs, it shall not be necessary to tender the oral evidence of the analyst in support of the statement made or opinions given in his certificate. (5) If a person is charged under section 27(4) or (5), the onus of proving that he was at the time of the alleged offence an employee at the hotel, or, as the case may be, a lodger at the hotel or a bona fide traveller shall lie upon him.

Forfeitures.

30. (1) Subject to subsection (2), liquor or a still, wagon or other article or vehicle declared to be forfeited under this Act shall, in accordance with the directions of the Principal Secretary for Home Affairs, be sold and the proceeds thereof paid into the public revenue of Swaziland. (2) The court may in the case of liquor which is adulterated or not in sealed containers, or a still, in its discretion, order it to be destroyed.

Sales by sheriff or messenger.

31. Notwithstanding anything in this Act, a sheriff, messenger or other person acting upon the authority of a court, judge or Regional Administrator, or an officer of customs, may in the discharge of his duty sell liquor; by public auction or tender to a person who is not an intemperate.

(Original section 31 repealed and replaced by A.4/1972 and is now section 32.)

Manufacturer of liquor.

32. (1) No person, other than the holder of a spirits manufacturer’s License issued under this Act, shall distil, brew or manufacture spirits for the purpose of sale or otherwise dealing therein. (2) Notwithstanding anything in any other law, or in any License granted under any law for the distillation, brewing, manufacturing of liquor and the sale thereof, no person shall sell or dispose of for use or consumption in Swaziland any liquor distilled, brewed, produced or manufactured by him to any person other than the holder of a License under this Act:

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Provided that this section shall not preclude the holder of a brewer’s License, or an African beer manufacturing and wholesale License from selling malt liquor of the kind and quantity permitted to be sold under such License to persons other than the holders of Licenses under this Act. (3) Notwithstanding anything in this Act, whenever under any excise law or other law or any regulations thereunder any License or permit is required for the distillation, brewing, or manufacture of liquor, no liquor shall be distilled, brewed or manufactured save under such License or permit or under such law. (Amended A.4/1972.)

Requirements in respect of certain classes of spirits.

33. No person shall manufacture or sell under the name of brandy, grape brandy, wine brandy (cognac type), whisky, blended whisky, malt whisky, gin, liqueur, rum, blended rum, spirit aperitif, spirit cocktail, rectified spirit, cane spirit, vodka or wine spirit, any article which does not conform to the description of the article as defined under that name in section 2. (Added A.4/1972.)

Prohibition on use of certain names or description for brandies.

34. (1) Save as provided in subsection (2) no person shall, as from a date to be fixed by the Minister by notice in the Gazette, sell in, or export from, Swaziland any type of brandy, whether produced in, or imported into, Swaziland, under any name or description whereof the use in respect of brandy of that type is prohibited in such notice: Provided that the Minister may at any time withdraw or amend any notice issued in terms of this subsection by like notice in the Gazette. (2) The Minister may by notice in the Gazette permit the use of certain names or descriptions subject to such conditions and limitations as may be specified in such notice. (Added A.4/1972.)

Prohibition on addition of unauthorized substances to certain articles.

35. No person shall manufacture or sell blended whisky, brandy, cane spirit, compounded gin, gin, grape brandy, liqueur, malt whisky, mixed spirits, orange fermented beverage, rectified spirit, rum, spirit aperitif, spirit cocktail, vodka, whisky, wine brandy (cognac type) or wine spirit if any substance has been added thereto unless such addition is authorized by this Act. (Added A.4/1972.)

Alcoholic strength of certain potable spirits.

36. (1) No person shall sell for potable purposes any spirits not referred to in section 35 of which the alcoholic strength is lower than twenty-five degrees under proof. (2) No person shall sell any spirits not referred to in section 35 under a name or reference which includes any expression referred to in such section. (Added A.4/1972.)

Labelling of brandy, whisky, rum, etc.

37. No person shall sell brandy, whisky, rum, gin, liqueur, spirit aperitif, spirit cocktail, or vodka of any description, unless the bottle or receptacle containing it is labelled in large letters, easily legible, showing in the case of brandy whether it is brandy, wine brandy (cognac type) or grape brandy or, in the case of whisky, whether it is whisky, blended whisky, or malt whisky or, in the case of rum, whether it is rum or blended rum or, in the case of gin, liqueur, spirit aperitif, spirit cocktail or vodka, that it is gin, liqueur, spirit aperitif, spirit cocktail or vodka. (Added A.4/1972.)

Labelling of mixed spirits.

38. No person shall sell mixed spirits unless the bottle or receptacle containing it is labelled in such a manner as to set forth in large letters, easily legible, of the same size, the specific spirits which have been used for the mixture. (Added A.4/1972.)

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Labelling of rectified spirit and certain other spirits.

39. No person shall sell for potable purposes rectified spirit or any other spirits not mentioned in section 37 or 38 unless the bottle or receptacle containing it is labelled in large letters, easily legible, showing the name of the raw material from which it has been derived, obtained or distilled. (Added A.4/1972.)

Colouring, flavouring or adulteration of rum.

40. (1) No person shall manufacture or sell rum which has been coloured otherwise than by caramel or from the wood of the cask in which such rum is stored, or has been flavoured otherwise than by means of sugar cane, leaves or pure fruit: Provided that the flavouring substances permitted to be used shall be placed in the still along with the mash or megass, and shall not be added to the liquor after distillation. (2) No person shall sell under the name of rum, or add to rum in the manufacture thereof, any silent spirit, whether flavoured or unflavoured, or any product of the distillation of maize, barley or other cereal grain. (Added A.4/1972.)

Prohibition on sale of compounded gin.

41. No person shall manufacture or sell compounded gin or any mixture of gin with compounded gin. (Added A.4/1972.)

Savings as to reduction of strength and flavouring and colouring of spirits.

42. This Act shall not render it unlawful — (a) for any person who manufactures or sells brandy, grape brandy, wine brandy (cognac type), whisky, blended whisky, malt whisky, or mixed spirits, to reduce the strength of any such article which he manufactures or sells by the addition of water, provided such addition does not reduce the strength below twenty-five degrees under proof; (b) to flavour brandy, other than wine brandy (cognac type), or to add to any kind of brandy for sweetening purposes pure cane sugar previously made into syrup (not exceeding one and a half ounces of cane sugar per gallon) or any product of the vine, or to colour any class of brandy by means of pure caramel or by the material derived from the wood of the cask in which it is stored; (c) to sweeten brandy or to flavour brandy so as to impart to it the pronounced specific flavour of aniseed, ginger, cloves, peppermint, or other vegetable product, provided the designation of the flavouring used immediately precedes the word “brandy” on the label and is in letters of the same size and type as those forming the word “brandy”; (d) to use the real essence of mint in the manufacture of any liqueur; (e) to treat distilled rum by means of pure charcoal for the purpose of improving its flavour; (f) to sweeten gin by means of cane sugar previously made into a syrup; (g) to flavour whisky, malt whisky, or blended whisky by the addition thereto of sherry wine, or to colour any such whisky by means of pure caramel or by the material derived from the wood of the cask in which it is stored; or (h) at any time prior to sale, to add water to rectified spirit, gin, cane spirit, rum, vodka or wine spirit to such extent as will not thereby reduce the alcoholic strength thereof below twenty-five degrees under proof. (Added A.4/1972.)

Offences by manufacturers or distillers.

43. Any person contravening any of the provisions of sections 32 to section 41 inclusive shall be guilty of an offence and liable on conviction to a fine not exceeding E1,000.00 or imprisonment for two years, or both. (Added A.4/1972.)

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Limitation of License-holder’s liability in respect of property of customers.

44. (1) The holder of a License shall not be liable to compensate a person in respect of a loss of, or injury to, the property of such person sustained while such person was a lodger in the licensed premises of such holder in a greater amount than the sum of one hundred emalangeni unless — (a) the loss or injury is proved to have been caused by the wilful act, or as a result of the default or negligence, of the holder of the License or of a person in his employ; or (b) the loss or injury was sustained while the property was deposited with the holder of the License or a person expressly or impliedly authorised by the holder of the License to receive that deposit; or (c) the holder of the License refused, save in the circumstances set forth in subsection (2), to receive the property offered for deposit, or failed to make adequate provision whereby the property could be deposited with him; or (d) the holder of the License failed to comply with the requirements of subsection (3). (2) The holder of a License in respect of an hotel, to whom property is offered for deposit by a person lodging or about to lodge in his licensed premises, may require that the property shall be contained in a suitable receptacle closed and sealed by the depositor. (3) A refusal by the holder of the License to accept property for deposit based upon a failure of such person to comply with such requirement shall not deprive the holder of the License of the benefits of the limitations of liability in respect of loss of, or injury to, such property conferred by subsection (1). (4) The holder of a License in respect of an hotel shall exhibit a copy of subsections (1), (2) and (3) in such manner and in such part of the hall or entrance of his licensed premises that it may readily be seen and easily read by a person proposing to lodge in the premises. (5) In so far as the liability of the holder of a License up to the amount of one hundred emalangeni is concerned, nothing in this section shall be deemed to affect the operation of the common law.

Management and responsibility.

45. (1) The holder of a License who, without the written consent of the Regional Administrator, permits another person to manage, superintend, or conduct the business of licensed premises during the absence of the holder for a longer period than ten days, shall be guilty of an offence and liable on conviction to a fine not exceeding fifty emalangeni or, in default of payment thereof, imprisonment not exceeding three months. (2) If the holder of a License is absent, his business may, without a formal transfer of the License, be carried on by a manager whose appointment is approved in writing by the Regional Administrator, who may at any time withdraw his approval. (3) If the manager is absent, the business may be carried on by a deputy-manager, whose appointment is approved in the manner provided by subsection (2), and such deputy, when approved, shall occupy the same position in law as the manager. (4) A person who is, at any time lawfully managing, superintending or conducting the business of the holder of a License as provided in this section, shall be subject to the same duties, obligations, and penalties as such holder, but nothing in this section shall be deemed to relieve such holder from any duties, obligations or penalties to which he may be subject or liable under this Act. (5) The holder of a License who allows or permits a minor to manage, superintend or conduct the business of licensed premises, at any time or for any period, shall be deemed to have committed an offence and shall be liable to the same penalty as that prescribed by subsection (1). (6) If the holder of a License dies, the executor of the estate of the deceased person and, failing or until the appointment of an executor, the surviving spouse, or a curator bonis appointed by the Master of the High Court for taking charge of the estate of that deceased person, or a person approved by the Regional Administrator, or, in the case of insolvency, the trustee of the estate of the insolvent, may, without a formal transfer of the License, carry on the business

471 until the end of the period for which the License was granted, and such persons shall possess all the rights, and shall be liable to all the duties, obligations and penalties of the original holder of the License. (7) If liquor, the property, or in the possession, of the holder of a License, is imported, sold, delivered, dealt in, disposed of, or supplied contrary to this Act, by a person, being a member of the family or in the service, permanent, temporary or casual, of the holder, then — (a) the liquor shall conclusively be deemed to have been imported, sold, delivered, dealt in, or disposed of, with the knowledge or permission of the holder of the License; and (b) all liquor imported, sold, delivered, dealt in, disposed of, or supplied contrary to this Act by such person, shall, unless the contrary is proved (the proof of which lies on the holder of the License) be deemed to be the property of the holder of the License or in his possession. (8) If the chief steward, or manager, or secretary, of a club, in whose name has been issued a License in respect of the club, vacates, for any reason, his position, the chairman of the club or, in his absence, the secretary of the club, who fails — (a) forthwith to give the chairman written notice of the name of the person appointed, whether temporarily or permanently, to the vacancy; and (b) to cause the notice to be countersigned by that person, shall be guilty of an offence and liable to the same penalty as that provided by subsection (1). (9) Subject to the payment of the prescribed fee for the transfer of a License, the person to whom the License is transferred shall possess all the rights, and be subject to all the duties, obligations and penalties respecting the License.

Restriction on credit sales of liquor.

46. (1) Subject to subsection (2), no person shall, save on premises in respect of which any kind of club liquor License is held supply liquor on licensed premises to be consumed on the premises; or consume liquor on licensed premises, unless the liquor is paid for at the time when it is supplied. (2) Subsection (1) shall be deemed not to be contravened if the liquor is supplied — (a) for consumption with an ordinary meal supplied at the same time and is consumed with that meal, and the price of the liquor is paid together with the price of the meal; or (b) in moderate quantity to the order of a person actually boarding or lodging there. (3) Except in the case mentioned in subsection (2), the holder of a License shall not recover a sum of money or other thing on account of liquor sold by him on credit to a person for consumption on the licensed premises. (4) A person who contravenes subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding fifty emalangeni, or, in default of payment thereof, imprisonment not exceeding three months.

Closure of licensed premises.

47. (1) During a riot or tumult licensed premises shall be closed for such time as may be specified in a written order issuable by a Regional Administrator, or a police officer of the rank of superintendent or above. (2) Any person who fails to comply with an order issued under subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred emalangeni or in default of payment thereof, imprisonment not exceeding six months.

Contracts.

48. Save as is otherwise specially provided in this Act, a contract by which a person purports to relinquish any right or forego any obligation under this Act shall be deemed to be null and void.

Regulations.

49. Subject to this Act, the Minister may make regulations —

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(a) as to the powers of the authority on the grant, renewal, removal or transfer of a License; (b) as to the conditions and privileges of the grant of a License, including the type of liquor to be sold and supplied, the type of premises to be used and the imposition of licensed hours; (c) as to the affixing to premises of appropriate signs in relation to the grant of a License; (d) as to the payment of fees and other charges; (e) as to the imposition of penalties for late payment of those fees and charges; and, (f) generally, as to all matters connected with the application for, or grant, renewal, transfer, removal or cancellation of, a License and the inspection and control of licensed premises; (g) for the control of the use of sugar in the manufacture or manipulating of any wine, other fermented beverage or spirits; (h) for the keeping of records of the receipt, removal or disposal of sugar at any place or upon any premises in which any wine, other fermented beverage or spirits is manufactured or manipulated; (j) prescribing the quantity of sugar which may be stored at any such place or in any such premises, and the times when, and the circumstances in which, sugar may be removed from any such place of storage; (k) prescribing the manufacturing processes of other fermented beverages, including the treatment before, during, or after the manufacture thereof; (l) prescribing, in the case of any kind or type of other fermented beverage, the substances which may be added thereto before, during, or after manufacture thereof, and the maximum permissible percentage that any such substances may constitute thereof, or the maximum quantity of any such substance which may be so added thereto; (m) prescribing the composition, the alcoholic strength, the acid content, or the dry extract of any kind or type of other fermented beverage; (n) prescribing the requirements with which spirits derived from the distillation of other fermented beverages shall comply; (o) prescribing any alcoholic beverages to be included under the definition of “spirits” in section 2, and the alcoholic content of such beverages, the acid content thereof, and the manufacturing processes thereof, including the treatment before, during, and after the manufacture thereof (Added A.4/1972.)

Repeal.

50. The Liquor License Proclamation (Cap. 125) is hereby repealed.

SCHEDULE (Under section 3 of the Act) (1) (2) Number Type of License 1. Wholesale liquor License. 2. Hotel liquor License. 3. Club liquor License. 4. Sports club liquor License. 5. Unfortified wine and malt liquor License. 6. Restaurant liquor License. 7. Bottle store liquor License. 8. Restricted bottle store liquor License. 9. Brewer’s License. 10. African beer manufacturing and wholesale License.

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11. Canteen License. 12. Employer’s liquor License. 13. African beer License. 14. Temporary liquor License. 15. Late extension (occasional) liquor License.

THE LIQUOR LICENSES REGULATIONS (Under section 49 of the Act)

Date of commencement: 1st September, 1964.

Arrangement of Regulations 1. Citation. 2. Interpretation. 2bis. Power of Minister to exempt. 3. Fee on application. 4. Who may issue Licenses. 5. Fees for Licenses and transfer, renewal and removal of Licenses. 6. Wholesale liquor License. 7. Hotel liquor License. 8. Club liquor License. 9. Sports club liquor License. 10. Unfortified wine and malt liquor License. 11. Restaurant liquor License. 12. Bottle store liquor License. 13. Restricted bottle store liquor License. 14. Brewer’s License. 15. African beer manufacturing and wholesale License. 16. Canteen License. 17. Employer’s liquor License. 18. African beer License. 19. Temporary liquor License. 20. Late extension (occasional) liquor License. Schedule.

Citation.

1. These regulations may be cited as the Liquor Licenses Regulations, 1964.

Interpretation.

2. In these regulations, unless the context otherwise requires —

“brewer” means person who brews for sale malt liquor other than African beer.

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Power of Minister to exempt.

2bis. The Minister may, in writing and upon such terms and conditions as he may impose, exempt any person from the application of any of these Regulations. (Added L.N.79/1981.)

Fee on application.

3. (1) On an application for the grant of a License of a number and type mentioned in the Schedule, there shall be paid — (a) in respect of numbers 1, 2 and 7, an advertising fee of E200 for each, and (b) in respect of numbers 5, 6 and 8, an advertising fee of E100 for each. (Amended L.N.79/1981; L.N.80/1990.) (2) On an application for the transfer or removal of a License of the number and type mentioned in paragraph (1) there shall be paid half the amount of the advertising fee prescribed under such paragraph for an application for the grant of a similar License. (Added G.N. 98/1964; amended L.N.80/1990.) (3) On an application for a renewal of a License of the type mentioned in the Schedule there shall be paid an advertising fee of E100 in respect of each application. (Amended L.N. 64/1971; L.N.79/1981; L.N.80/1990.)

Who may issue Licenses.

4. The Accountant-General or a Regional Administrator of the region concerned may issue a License — (a) of the class mentioned in column 2 of the Schedule, and, (b) subject to the Act and these regulations, in a form approved by the authority.

Fees for Licenses and transfer, renewal and removal of Licenses.

5. (1) Subject to paragraph (2), there shall be paid to the Government, in respect of the grant or renewal of a License, the amount of the fee mentioned in column three of the Schedule and appearing immediately opposite to the appropriate type of License mentioned in column 2 thereof. (2) Where the premises to be licensed are situated outside an urban area, the amount of the fee payable is eighty per cent of the amount of fee mentioned in relation to those types of License immediately opposite to which appear, in column 1 of the Schedule, the numbers 2, 5, 7 and 8, respectively. (Amended L.N.80/1990.) (2a) Where the Chairman decides in his discretion to consider a late application under section 14(5) of the Act, that application shall be subject to the prior payment of a penalty fee of E40 for each day that it is late. (Added L.N.80/1990.) (3) Any person who fails, within fourteen days from the date when his liability commenced, to take out a License as required by law, shall pay — (Amended L.N.80/1990.) (a) for each day or part of a day during which he operates without a License, a sum calculated at the rate of fifteen per cent of the amount of the yearly License fee, and (Amended L.N.79/1981; L.N.80/1990.) (b) the amount of the fee mentioned in paragraphs (1) and (2), as appropriate. (Amended L.N.80/1990.) (4) The payment by a person of an amount under paragraph (3) shall not be deemed to relieve him of any criminal liability incurred through his failure to take out a License, nor does the fact of any criminal liability having been incurred relieve him of an obligation under that paragraph to pay such amount. (5) There shall be paid, in the case of a transfer or removal of — (a) a License, other than a club or sports club License, a fee equivalent to thirty per cent of the fee for the License, and (Amended L.N.79/1981; L.N.80/1990.) (b) a club or sports club License, a fee of E40. (Amended G.N. 98/1964; L.N. 64/1971; L.N.79/1981; L.N.80/1990.) (6) The Accountant-General or an officer deputed by him for the purpose, or the Regional Administrator concerned, shall endorse on a License the fact of its transfer. 475

Wholesale liquor License.

6. (1) A wholesale liquor License shall authorize the sale of liquor only to holders of liquor Licenses, His Majesty the King, the Government, the diplomatic agents accredited to Swaziland and their families and the staff of the said agents and their families (provided they are citizens of the country they represent), organizations, institutions and persons falling within the provisions of section 9 of the Diplomatic Privileges Act, No. 18 of 1968, or religious institutions recognized by the Minister in respect of unfortified wines for use in any church for religious purposes at the days and hours prescribed by section 3 of the Shop Hours Act No. 75 of 1955, for a shop within an urban area, not being a shop to which the provisions of section 4 of such Act applies. (2) Such License is a License for the purposes of sections 17 and 18 of the Act (report on application). (Amended L.N.80/1990.) (3) The holder of a wholesale liquor License shall fix and maintain, in a conspicuous place on the front of the licensed premises, a sign exhibiting, in capital block letters at least two inches high, his name and the following words — “Licensed to sell liquor by wholesale only”. (Amended G.N. 154/1964; L.N. 1/1971.)

Hotel liquor License.

7. (1) An hotel liquor License shall authorize the sale of liquor on the licensed premises for consumption, during the hours mentioned in this regulation, on the licensed premises only. (2) In granting such License, the Board shall, as appropriate, declare it to be an hotel liquor License, either — (a) for an urban area, called an urban hotel liquor License, or (b) for an area outside an urban area, called a rural hotel liquor License. (3) Such License is a License for the purposes of — (a) section 17 of the Act (report on application); and (b) section 18 of the Act (report by medical officer). (4) The ordinary hours for the sale of liquor under an hotel liquor License shall be as follows — (a) on Sunday, Good Friday and Christmas Day, between 12.00 noon and 3.00 p.m. and between 6.00 p.m. and 10.00 p.m.; and, (b) on all other days, between 11.00 a.m. and 3.00 p.m. and between 5.00 p.m. and 10.00 p.m. (Amended L.N.79/1981.) (5) Subject to such reasonable conditions as it may impose, the Board may, in its discretion, grant the privilege of an extension of hours — (a) to 11.00 p.m. on payment of a fee of E200; or (b) to 12 midnight on payment of a fee of E400. (Amended L.N.79/1981; L.N.80/1990.) (6) Regulation 6(3) shall also apply to the holder of an hotel liquor License, save that the sign shall exhibit the following words — “Licensed to sell liquor”. (Amended L.N. 64/1971.)

Club liquor License.

8. (1) A club liquor License shall — (a) authorize the sale and supply between the hours of 11.00 a.m. and 12 midnight, to members of the club, of liquor in any quantity for consumption on the premises; and (Amended L.N.79/1981.) (b) be issued only to the secretary, manager or chief steward of the club:

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Provided that if such secretary, manager or chief steward ceases for any reason to hold his position, the Chairman may, subject to confirmation at the next meeting of the Board and on payment of a fee of E20, if he is satisfied that the person who has been appointed by the club as the new secretary, manager or chief steward, as the case may be — (a) has been so appointed by the club in terms of its constitution; (b) is not disqualified from holding a liquor License under the Act; (c) is otherwise a suitable person in whose name the License may be issued; cause the name of such person to be endorsed on the License, and such person shall thereupon possess all the rights and be subject to all the duties, obligations and penalties of a licensee. (Added L.N. 38/1971; amended L.N.80/1990.) (2) A Board shall not grant an authority for the issuance, transfer, removal, or renewal, of a club liquor License unless, by reference to the rules, or by report furnished under section 17, or otherwise, it is satisfied that — (Amended L.N.80/1990.) (a) the club is a bona fide club managed by a committee of its members; (b) that the committee holds regular meetings of which proper minutes are kept; (c) only members of the club, including bona fide reciprocity members, are permitted to pay for accommodation or refreshment supplied in it; (d) an ordinary member of the club is not elected — (i) less than fourteen days after nomination; or (ii) without his name having been screened, for at least seven days, on the club premises; (e) the election of ordinary members is either by — (i) the committee, or (ii) all members of the club, (but the rules of the club may disqualify from voting a member in arrear with a payment due to the club); (f) a person residing within ten miles of the club-house is not eligible as an honorary or temporary member of the club, save when the eligibility is, in terms of the rules of the club, granted by reason of that person — (i) holding some public office, or (ii) being a bona fide candidate for membership, or when, by resolution of the club committee, that person is allowed the privileges of membership while engaged in a match or competition connected with the activities of the club; (g) a register of members and proper accounts are kept; (h) the annual subscription is at least five rand, save that in the case of bona fide country members the annual fee shall be not less than two rand; (Amended L.N. 64/1971.) (j) the club consists of at least fifty members; (k) save under a written agreement approved of by the Board, profit from the sale of liquor by the club does not accrue to an individual; (l) a democratic constitution which does not discriminate on the grounds of the race, colour, creed or nationality of its members and is written in the English language exists in respect of the club. (Added L.N.80/1990.) (3) Such License is a License for the purposes of — (a) section 17 (report on application); and (b) section 18 (report by medical officer).

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Sports club liquor License.

9. (1) Regulation 8(1) shall also apply to a sports club liquor License, except in so far as sub-paragraph (a) thereof relates to the time during which liquor may be supplied. (2) Regulation 8(2) shall also apply to such License save that — (a) in relation to paragraph (d)(i) thereof, the sports club shall consist of at least thirty-five members; and, (b) in addition, the Board shall be satisfied that the club is, bona fide, principally concerned with outdoor sports. (3) Subject to paragraph (4), the days and hours for the sale or supply of liquor in the case of such a License, shall be as follows — (a) on Sundays, between 11 a.m. and 2 p.m. and between 5 p.m. and 8 p.m.; (b) on Saturdays and public holidays, between 11 a.m. and 2.15 p.m. and between 5 p.m. and 10.30 p.m.; and, (c) on other days, between 5 p.m. and 8 p.m. (4) The Board may, in its discretion, vary those hours as a condition of the issuance of a License. (5) Such a License is a License for the purposes of — (a) section 17 (report on application); and (b) section 18 (report by medical officer).

Unfortified wine and malt liquor License.

10. (1) An unfortified wine and malt liquor License shall authorize the sale of unfortified wine and malt liquor, on the licensed premises, for consumption, during the hours mentioned in this regulation, on the licensed premises. (2) Such License may be granted only in respect of premises providing, to the satisfaction of the Board, a storeroom for liquor and a suitable bar and lounge for the consumption referred to: Provided that this paragraph shall not apply to such License granted in respect of any sports stadium if the Minister so directs in writing to the Chairman of the Board. (Added L.N. 57/1971.) (3) Regulation 7(4), (5) and (6) shall also apply to premises the subject of an unfortified wine and malt liquor License. (4) The holder of an unfortified wine and malt liquor License shall fix and maintain, in a conspicuous place on the front of the licensed premises, a sign setting forth, in capital block letters at least two inches high, his name and the following words — “Licensed to sell unfortified wine and malt liquor”. (5) Such License is a License for the purposes of — (a) section 17 (report on application); and (b) section 18 (report by medical officer).

Restaurant liquor License.

11. (1) A restaurant liquor License shall authorize the sale, during the licensed hours and on the licensed premises, of malt liquor and wine for consumption with ordinary meals on the licensed premises: (Amended L.N. 89/1977; L.N.79/1981.) Provided that a Board may, if it is satisfied the restaurant caters, or is likely to cater, for tourists visiting Swaziland and is of a sufficiently high standard, in its discretion authorize the sale of any kind of liquor as defined in section 2 of the Act during the hours referred to in paragraph (3) hereof. (Added L.N. 38/1971.) (Second proviso repealed L.N. 89/1977.) (2) A Board shall not grant an authority for the issuance or renewal of a restaurant liquor License unless it is satisfied that —

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(a) the applicant keeps, or proposes to keep, upon the premises in respect of which the application is made, a bona fide restaurant of a high standard at which ordinary meals will regularly be provided for guests; and (b) the premises afford reasonable accommodation for persons taking meals in that restaurant. (3) The days and hours for the sale or supply of liquor, in the case of such a License, are as follows — (a) on Sundays and public holidays, between 12 noon and 3 p.m. and between 6 p.m. and 9 p.m.; and, (b) on other days, between 12 noon and 3 p.m. and between 6 p.m. and 10.00 p.m.: (Amended L.N.79/1981.) Provided that a Board may, subject to such reasonable conditions as it may in its discretion impose, grant the privilege of an extension to the following times on any day — (a) 11.00 p.m. on payment of a fee of E200; or (b) 12.00 midnight on payment of a fee of E400. (Added L.N. 38/1971; amended L.N. 64/1971; L.N.79/1981; L.N.80/1990.) (4) Such a License is a License for the purposes of — (a) section 17 of the Act (report on application); (b) section 18 of the Act (report by medical officer). (5) (Added L.N. 41/1976; repealed L.N. 89/1977.)

Bottle store liquor License.

12. (1) Subject to paragraph (2), a bottle store liquor License shall authorize the sale, during the licensed hours and on the licensed premises, of all kinds of liquor in bottles or jars properly and securely corked and sealed — (a) in the case of wine, of no greater capacity than one imperial gallon, and (b) in the case of other liquor, of no greater capacity than one imperial quart: Provided that such liquor shall not be consumed on the premises. (2) Liquor shall not be sold in bottles or jars of a capacity of less than one reputed half-pint. (3) A license granted under this section shall entitle the holder thereof to sell liquor except on Sundays and public holidays as follows — (a) on Saturday between 9.00 a.m. and 5.00 p.m.; (b) on all other days between 9.00 a.m. and 6.00 p.m. (Amended G.N. 154/1964; L.N.79/1981; L.N.91/1981.) (4) Upon payment of a fee of E400, the Board may, in its discretion, grant the privilege of an extension of hours to 8 p.m. on any day excluding only Sunday. (Amended L.N. 64/1971; L.N.80/1990.) (5) Paragraph (3) of regulation 6 shall also apply to the holder of a bottle store liquor License except that the sign shall exhibit the following words — “Licensed to sell liquor”. (6) Such License is a License for the purposes of section 17 (report on application).

Restricted bottle store liquor License. 13. (1) Subject to paragraph (2), a restricted bottle store liquor License shall authorize the sale, during the licensed hours and on the licensed premises, of unfortified wine and malt liquor in bottles or jars properly and securely corked and sealed — (a) in the case of wine, of no greater capacity than one imperial gallon, and, (b) in the case of malt liquor, of no greater capacity than one imperial quart: Provided that such liquor shall not be consumed on the premises. (2) Liquor shall not be sold in bottles or jars of a capacity of less than one reputed half-pint. (3) A Board may in its discretion grant such License to a general dealer, licensed under a law relating to trading Licenses, whose premises it considers suitable. 479

(4) Regulation 12(3) and (5) and regulation 10(4) shall also apply to a restricted bottle store liquor License. (5) Such License is a License for the purposes of sections 17 and 18 (report on application). (Amended L.N.80/1990.)

Brewer’s License. 14. (1) A brewer’s License shall authorize the brewer named in it to export, and, during the licensed hours, to sell to holders of a liquor License, other than holders of an African beer manufacturing and wholesale License or an African beer License, malt liquor brewed by him on premises licensed under the Customs and Excise Act, No. 21 of 1971. (2) The licensed hours for sale of malt liquor, in the case of such a License, shall be those prescribed by section 3 of the Shop Hours Act, No. 75 of 1955, for a shop within an urban area, not being a shop to which the provisions of section 4 of that Act apply. (Amended G.N. 154/1964.) (3) An application for such a License may be made at any time. (4) Save that the report shall be furnished to the Minister and not to the clerk, such License is a License for the purposes of — (a) section 17 (report on application); and (b) section 18 (report by medical officer).

African beer manufacturing and wholesale License.

15. (1) The Minister may, in his discretion grant either one or more Licenses, or an exclusive License, (subject to such conditions as he may consider necessary, including a condition as to the revocation of the License in certain specified circumstances) conferring on the manufacturer named in it the right or, as the case may be, the exclusive right, subject to paragraph (2), to sell African beer manufactured by the manufacturer to holders of an appropriate License. (2) Neither the grant of an exclusive License under paragraph (1) nor anything contained in this regulation, as amended, shall be deemed — (a) to affect the validity of an African beer manufacturing and wholesale License granted prior to, or (b) otherwise, to be a contrary intention within the meaning of section 23 of the Interpretation Act No. 21 of 1970. (Amended L.N.28/1967.) (3) An application for such a License may be made at any time. (4) (Repealed L.N.65/1969.)

Canteen License.

16. (1) A canteen License shall be issued as either — (a) a police canteen License, or (b) a regimental canteen License, or (c) a prison canteen License; (Added L.N.37/1969.) authorizing the sale, at any time, and at such places as may be specified in the License, of liquor to, respectively, members or ex-members of the Swaziland police or to members of His Majesty’s naval, land and air forces or to members of the prison service. (Added L.N.37/1969.) (2) Such License shall not be granted to a person not being a member of the Swaziland Police or of those forces or to members of the prison service. (Added L.N. 37/1969.) (3) An application for a canteen License may be made at any time. (4) Before considering an application for such a License, the Minister shall require the applicant to produce a certificate certifying that the applicant is a fit and proper person to receive and hold such License and stating — (a) his full name and rank, (b) the place at which the canteen is to be opened, and 480

(c) the period of the License for which the application is made. (5) In the case of a — (a) police canteen License, such certificate shall be signed by the Commissioner of Police; and (b) regimental canteen License, by the Commanding Officer of the applicant, and (c) prison canteen License, by the Director of Prisons. (Added L.N. 37/1969.)

Employer’s liquor License.

17. (1) Subject to this regulation, an employer’s liquor License shall authorize the sale and free supply, at any time, by an employer to his employees, of unfortified wine, malt liquor and African beer, subject to such conditions, if any, as the Minister may consider necessary. (2) Such License shall not be required by an employer, who employs on his permanent staff less than fifty persons, and who supplies free of charge to these persons such liquor as is mentioned in paragraph (1). (3) Subject to paragraph (4), it shall be an implied condition of such License that any profits, resulting to the employer, from the sales to his employees, after deduction of the expense mentioned in paragraph (5), shall be utilized in welfare work, for the benefit of the employees, in such manner as may be approved in each case by the Minister. (4) The profits, if any, shall be ascertained from a written return of the sales and free supply, by the employer to his employees, which the employer shall render to the Minister during the first week of January of every year. (5) Such return shall be audited at the expense of the employer by an auditor appearing to the Minister to be competent for the purpose. (6) The Minister may at any time cancel such License. (7) For the purposes of sections 21 and 22, a dealing in liquor includes the free supply of liquor to employees by such an employer. (8) An application for an employer’s liquor License may be made at any time. (9) Save that the reports shall be furnished to the Minister and not the clerk, such License is a License for the purposes of — (a) section 17 (report on application); and (b) section 18 (report by medical officer).

African beer License.

18. (1) Subject to this regulation, the Regional Administrator may grant an African Beer License authorising the sale of African Beer for consumption on or off the premises or both, upon such conditions as he may think fit. (2) An application for such License may be made at any time. (Amended L.N. 28/ 1967; L.N. 65/1969.)

Temporary liquor License.

19. (1) A temporary liquor License shall — (a) be issued for such period as the Regional Administrator may approve; (b) be issued only to the holder of an hotel liquor License or an unfortified wine and malt liquor License whose premises are situate within the region of such Regional Administrator; and (Amended L.N. 38/1971) (c) authorize the holder to sell the appropriate liquor in unsealed quantities not exceeding such as may reasonably be consumed at a place of recreation or public amusement mentioned in the License; and: Provided that such License shall not authorize the sale of liquor on premises in respect of which a restaurant liquor License or unfortified wine and malt liquor License business is being conducted. (Amended L.N. 38/1971.) (d) be subject to such other conditions as the Regional Administrator may think fit to endorse on the License. (2) An application for such a License may be made at any time.

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Late extension (occasional) liquor License. 20. (1) A late extension (occasional) liquor License shall — (a) be issued for such period, not exceeding three hours, as the Regional Administrator may fix; (b) be issued, on a special occasion, only to the holder of an hotel liquor License, or a sports club liquor License or a club liquor License; (Amended L.N.57/1971.) (c) authorize the holder to keep his licensed premises open for the sale of liquor after the closing time fixed in respect of his License; and (d) be subject to such other conditions as the Regional Administrator may think fit to endorse on the License. (2) An application for such License may be made at any time.

SCHEDULE (Replaced L.N.79/1981; amended L.N.91/1981; replaced A.8/1985; L.N.80/1990.) (Under Regulation 3(1)) No. Types of License Fee 1. Wholesale Liquor License...... E1500 for 1 year 2. Hotel Liquor License...... E1000 for 1 year 3. Club Liquor License...... E 600 for 1 year 4. Sport Club Liquor License ...... E 300 for 1 year 5. Unfortified Wine and Malt ...... E 300 for 1 year 6. Restaurant Liquor License...... E 300 for 1 year and in the event of the licensee being authorised to sell liquor in terms of the proviso to regulation 11(1) E600 for 1 year. 7. Bottle Stores Liquor License ...... E 800 for 1 year 8. Restricted Bottle Store Liquor License...... E 400 for 1 year 9. Brewer’s License...... E2000 for 1 year 10. African Beer Manufacturing and Wholesale License...... E1000 for 1 year 11. Canteen License ...... Free 12. Employer’s Liquor License ...... E 200 for 1 year 13. African Beer License...... E 50 for 1 year 14. Temporary liquor 1icence E 50 for each day 15. Late Extension (occasional) Liquor License ...... E 55 for each period of extension.

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THE BUILDING SOCIETIES ACT Commentary

This is an Act providing for the control of building societies in Swaziland. The Act prohibits against the carrying on of business by a building society unless it has been registered. It then lays down the procedure to be followed when forming a Society saying that it may be formed by any seven or more persons by subscribing their names and addresses to rules agreed by them for the government of such society, and by obtaining registration under this Act.

The Act goes on to list a number of matters that must be provided in the rules of any building society as well as the procedure for alteration of these rules, which rules have to be open to members of the public. From the date of registration, a building society is then considered a body corporate with separate legal personality, capable of suing and being sued in its registered name.

Where the Registrar has reasonable grounds for believing that a certificate of registration has been obtained fraudulently or by mistake, or a building society exists for an illegal purpose, has wilfully exceeded its powers or has ceased to conduct business as such, he may with the approval of the minister, apply to court for the cancellation or suspension of the registration of the society.

Part III of the Act relates to powers of the building society. According to section 17 it may for example acquire or retain the ownership of land and erect buildings thereon primarily required for the administration of the society’s affairs, and may, from time to time alienate such land or terminate or cede such lease and acquire or hire other land for the same purpose. The society also has a right to buy in immovable property mortgaged to the society or acquire leases of land ceded to the society in security for debt and hold such immovable property or leases.

A minor over the age of sixteen (16) and a married woman whether under marital power or not may be a member or depositor of any building society.

According to section 33 of the Act a building society has to make a valuation of a property before it can make any advance. Thus it appoints a valuator for this purpose, who is required to make an inspection of the immovable property concerned.

The Act places a duty on the director, local director or member of a local committee of a building society who has any direct or indirect pecuniary interest in the granting of an advance to declare the nature and extent of such interest at any meeting of directors, local directors or local committee where the granting of such advance is considered.

The Act also places a restriction on the society’s pledging of approved investments and mortgages for a loan or overdraft unless it holds in cash or on authorised deposit sufficient assets. A building society is not allowed to pledge any mortgage as security for a loan or overdraft unless it holds sufficient unencumbered assets in cash, authorised deposit or in approved investments.

According to section 41 a building society has to manage its affairs in such a way that the sum of its permanent share capital does not at any time amount to less than an amount which represents a prescribes percentage of the sum of amounts calculated by multiplying all balance sheet and off-balance sheet amounts by risk weights expressed as percentages.

Part IV of the Act relates to the management and administration of the building society. It holds that a building society must have its head office in Swaziland or its principal office in Swaziland (if it’s a foreign building society) and its financial year shall end on the 31st day of March. This part of the Act goes on to provide for the holding of annual and special general meetings, inspection of minute books, keeping of books of account, appointment and disqualification for appointment as auditor as well as the investigation of a building society’s affairs.

Part V is basically about the registration of building societies. Part VI which is the last part deals with general issues. For example it provides for what happens or what one should do in the event that a share certificate, savings deposit book, subscription share 483 pass book or fixed deposit receipt issued by the society is lost or destroyed. Also a person may, on payment of a prescribed fee, proceed to the office of the registrar and inspect documents relating to any building society.

The Building Societies Act, 1962

Date of commencement: 1st April, 1962.

Arrangement of sections

PART I

PRELIMINARY 1. Short title. 2. Interpretation. 3. Application of Act. 4. Name of terminating society.

PART II

REGISTRATION OF SOCIETIES AND MATTERS INCIDENTAL THERETO 5. Prohibition of unregistered society. 6. Mode of forming a building society. 7. Matters which must be provided in rules of a building society. 8. Alteration of rules. 9. Rules open to public. 10. Registration of building societies. 11. Registrar may inspect books and accounts of any association. 12. Effect of registration. 13. Conclusiveness of certificate of registration. 14. Cancellation or suspension of registration. 15. Name of building society. 16. Change of name of building society.

PART III

POWERS OF BUILDING SOCIETIES, DEPOSITS, SHARES, ADVANCES AND FINANCIAL PROVISIONS WITH RESPECT TO BUILDING SOCIETIES 17. Powers of building societies. 18. Minors and married women may be members of building society. 19. Conditions in regard to savings deposits and fixed deposits. 20. Maximum savings deposit or fixed deposit by individual. (First Schedule) 21. Saving in the case of deposits by a trustee. 22. Conditions relating to shares. 23. Maximum shareholding by individual. 24. Building society may redeem share in certain circumstances. 25. Advances must be reducible or fixed-term advances. 26. Limit as to amount of advance.

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27. The Minister may guarantee repayment of advances. 28. Limit as to amount of advance when the Minister has guaranteed repayment. 29. Methods of calculating interest must be stated in advertisement relating to advances. 30. Advance on property already mortgaged prohibited. 31. Building society may make further advances for certain purposes. 32. Limitation of sums to be advanced to borrowers. 33. Valuation of property for purposes of advance. 34. Valuator must have no pecuniary interest in advance. 35. Duty of director, etc. to disclose interest in advance. 36. Building society may recover certain amounts in addition to amounts entitled to under mortgage or cession. 37. Registrar may examine building society books. 38. Non-compliance with Act does not invalidate advance. 39. Establishment of statutory reserve fund. 40. Restriction on pledging of investments and mortgages. 41. Restriction on borrowing. 42. Building society must hold certain amount daily as security for repayments. 42bis. Minimum local assets.

PART IV

MANAGEMENT AND ADMINISTRATION 43. Head office of a building society. 44. Financial year of a building society. 45. Periodical statements as to financial position. 46. Annual accounts. 47. Building society must provide fidelity cover. 48. Annual and special general meetings. 49. Minutes of proceedings of meetings of a building society or directors. 50. Inspection of minute books. 51. Keeping of books of account. 52. Appointment of auditors. 53. Disqualifications for appointment as auditor. 54. Contents of auditor’s report. 55. Auditor’s right of access to books and to attend general meetings. 56. Investigation of a building society’s affairs on application of members. 57. Investigation of a building society’s affairs in other cases. 58. Production of documents and evidence on investigation. 59. Inspector’s reports. 60. Proceedings on inspector’s report. 61. Expenses of investigation of a building society’s affairs. 62. Saving for attorneys and bankers. 63. Inspector’s report to be evidence. 64. Directors and secretary.

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65. Validity of acts of director. 66. Disqualification from appointment as director. 67. Amalgamation of two or more building societies. 68. Modes of winding up. 69. Liability of members. 70. Liability of borrowers. 71. Judicial management of a building society.

PART V

FOREIGN BUILDING SOCIETIES 72. Registration of foreign building societies. 73. Provisions of this Act to apply.

PART VI

GENERAL 74. Lost or destroyed share certificates, etc. 75. Exemptions from stamp and other duty. 76. Inspection of documents by public. 77. Default in rendering accounts and furnishing information. 78. Acceptance of benefits prohibited. 79. False statements. 80. Default in complying with financial provisions. 81. Evidence. 82. Penalties. 83. Regulations. First Schedule. Second Schedule.

An Act to provide for the control of Building Societies.

PART I

PRELIMINARY

Short title.

1. This Act may be cited as the Building Societies Act, 1962.

Interpretation.

2. In this Act, unless the context otherwise requires —

“advance” includes one or more advances on the security of a mortgage or a cession of a lease of one property or of two or more properties jointly;

“approved investment” means an investment approved in terms of section 17(1)(j);

“authorised deposit” means a deposit mentioned in section 17(1)(g);

“board of directors” in relation to any society means the managing body thereof by whatever name it may be called;

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“building society” means an association of persons — (a) whose name or title contains the words “building society”; or (b) whose principal object is the making, out of funds derived from the issue of shares to and the acceptance of deposits from the public or from subscriptions by members, of advances for any purpose upon the security of the mortgage of urban immovable property; but does not include a terminating society;

“call deposit” means a deposit which can be withdrawn on demand; (Added A.16/1992.)

“cession” means a cession of a registered lease of immovable property, the unexpired period of which is at the date of cession not less than thirty years;

“Court” means the High Court and in relation to any offence under this Act includes a Magistrate’s Court having jurisdiction in respect of that offence;

“director” includes any person occupying the position of director or alternate director of a society by whatever name he may be called;

“fixed deposit” means a deposit for a period which is fixed in accordance with the provisions of section 19(e);

“fixed-period share” means a paid-up share issued for a period of three years or longer which may not be redeemed before the expiry of the period for which it is issued, except as otherwise provided under section 24 of this Act; (Amended A.10/1970; A.7/1980.)

“fixed term advance” means an advance on terms and conditions which provide for the repayment of the capital amount advanced within a fixed period;

“general reserve fund” means a general reserve fund established by a society other than a statutory reserve fund and built up out of profits and not set aside for any specific purpose;

“immovable property” means — (a) any piece of land registered as a lot, erf or stand in the Deeds Registry; (b) any small holding or any other piece of land not exceeding ten hectares in extent, used or intended primarily for residential purposes; (Amended A.7/1980.) (c) any other land which the Registrar may designate or classify as immovable property for the purposes of this Act; (Added K.O-I-C. 12/1974; Amended A.7/1980.)

“Magistrate’s Court” means a subordinate Court established under the Magistrate’s Court Act, No. 66 of 1938;

“member” in relation to a society means a person who holds shares therein, whether fully or partly paid-up, which participates in the profits thereof whether or not such shares are held by the society as security for an advance;

“Minister” means the Minister for Finance;

“mortgage” means a mortgage of immovable property; (Amended A.7/1980.)

“officer” in relation to a society means any director, manager, secretary, clerk, agent or other employee of the society but does not include an auditor of the society;

“permanent share” means a fully paid-up share of which the holder shall not be entitled at any time to demand redemption but which the society may redeem after six months’ notice to the holder if its rules so provide;

“reducible advance” means an advance on terms and conditions which provide for the redemption of the capital amount advanced by periodical payments;

“Registrar” means the governor of the Monetary Authority of Swaziland established under the Monetary Authority of Swaziland Order, No. 6 of 1974; (Amended K.O-I-C. 35/1976.)

“regulation” means a regulation made under section 83; 487

“savings deposit” means — (a) a deposit other than fixed deposit; (b) a deposit for a fixed period not exceeding twelve months;

“secretary” in relation to a society includes any executive officer of the society acting in the capacity of secretary;

“statutory reserve fund” means a statutory reserve fund established in terms of section 39;

“subscription share” means a share which — (a) is paid for by periodical contributions; (b) is calculated to mature at the expiry of a period of not less than three years; and (c) may not be redeemed before the expiry of the maturity period, except as otherwise provided under section 24 of this Act; (Amended P.3/1964; A.7/1980.)

“terminating society” means an association which by its rules has no power to accept deposits or to borrow money otherwise than from another section of the same society, and which is bound to terminate on the expiry of a fixed period or upon the occurrence of an event specified, or the rules of which provide for the organisation of its members in sections, for the separate administration of the affairs of each section or the joint administration of the affairs of all sections and for the termination of each section upon the expiry of a fixed period or upon the occurrence of an event specified in the rules; (Amended P.3/1964.)

“transmission account” means an account opened on behalf of a depositor into which the depositor may deposit money and from which the building society may in accordance with the instructions of the depositor make a payment on demand to the depositor or any other person or transfer an amount to any other account, and the building society may, subject to such conditions as it may determine, allow such payment from the account to exceed the depositor’s credit balance in the account; (Added A.16/1992.)

“urban”; (Repealed A.7/1980.)

“valuator” means a person appointed by a building society under section 33(1) read with section 34.

Application of Act.

3. This Act shall apply to every building society.

Name of terminating society.

4. (1) No terminating society shall carry on business unless the word “terminating” forms part of its name or title. (2) Any society which contravenes the provisions of subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand emalangeni.

PART II

REGISTRATION OF SOCIETIES AND MATTERS INCIDENTAL THERETO

Prohibition of unregistered society.

5. (1) No society, association or company shall carry on business as a building society unless it is registered in terms of this Act. (2) Any society, association or company which contravenes subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand emalangeni.

Mode of forming a building society.

6. Any seven or more persons may form a building society by subscribing their names and addresses to rules agreed to by them for the government of such society, and by obtaining registration under this Act.

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Matters which must be provided in rules of a building society.

7. (1) The rules of every building society shall provide for the following matters — (a) the name of such society and the situation in Swaziland of its head office or in the case of a foreign building society registered under this Act the name of the society and the situation and postal address of its principal office in Swaziland; (b) the principal objects of the society; (c) the manner in which the funds of the society are to be raised, the purposes to which they are to be applied and the manner in which surplus funds are to be invested; (d) the manner in which a person may become a member and may cease to be a member; (e) the classes of shares to be issued, the conditions of redemption or repayment of shares, and the preferential and other special rights attaching to each class of shares; (f) the manner in and the conditions upon which advances upon the security of a mortgage or cession are to be made and repaid, and the conditions upon which a borrower shall be entitled to repay the amount owing by him before the expiry of the period for which the advance was made; (g) the conditions upon which the society will accept and repay deposits; (h) the fees, fines and charges that may be demanded from or imposed upon shareholders, depositors and borrowers; (i) the manner of appointment of an auditor of the society; (j) the manner in which profits or losses are to be ascertained and dealt with or provided for; (k) the manner of altering and rescinding the rules of the society and of making additional rules; (l) the manner of electing, appointing, removing and fixing the remuneration of directors, their qualifications, powers and duties, and the manner of appointment, removing and fixing the remuneration of members of local boards or committees and of officers of the society; (m) the manner of calling annual general meetings and special general meetings of members, the quorum necessary for the transaction of business at such meetings, and the manner of voting thereat; (n) whether disputes between the society and any of its members, or between the society and any persons claiming under the rules or whose claims are derived from members shall be settled by the Court or by arbitration; (o) such other matters as may be prescribed from time to time. (2) The registered rules and any registered amendments thereto as hereinafter provided shall be binding on such society and members and officers thereof, and on all persons claiming under the rules or whose claim is derived from a member.

Alteration of rules.

8. (1) A building society may, in the manner directed by its rules, alter or rescind any rule, or make any additional rule, but no such alteration, rescission or addition shall be valid if it — (a) purports to affect the right of a creditor of a building society who is not a member thereof; or (b) is directed against any particular individual; or (c) purports to alter the rights of members in a winding up. (2) Two copies of every resolution for the alteration or rescission of any rule or the making of any additional rule shall be signed by two directors and the secretary of the society, and shall be transmitted by the secretary of the society to the Registrar, who, if he is satisfied that such alteration, rescission or addition is in conformity with this Act, shall register the resolution and return one of the copies to the secretary of the society, with the date of registration endorsed thereon, and as from the date of registration the alteration, rescission or addition, as the case may be, shall take effect.

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Rules open to public.

9. (1) Every building society shall make a copy of its rules available for inspection by members of the public during the normal business hours of the society. (2) Any building society which contravenes subsection (1) shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred emalangeni.

Registration of building societies.

10. (1) The persons intending to establish a building society shall lodge with the Registrar the rules agreed upon by them for the government of the society and signed by them, together with such particulars relating to the signatories thereto as the Registrar may require. (2) The Registrar shall, after consideration of such rules and particulars and such further information and arguments as may be submitted to him by such persons, determine whether according to its rules, the society to be established is or is not a building society. (3) If it be determined in terms of subsection (2) that the society to be established is not a building society, the Registrar shall inform such persons accordingly: Provided that — (a) the decision of the Registrar under the subsection shall be subject to an appeal to the Minister, if such appeal be made within one month after the decision of the Registrar has been announced; and (b) the decision of the Minister on any such appeal shall be subject to an appeal to the Court, if such appeal be noted within three months after the decision of the Minister has been announced. (4) If it be determined in terms of subsection (2) that the society to be established is a building society, the Registrar if he finds that the rules are in conformity with this Act, and if he is satisfied that the rules are financially sound and that the methods of transacting the business of the society as laid down are not undesirable, shall recommend to the Minister that permission be granted to register the society as a building society. (5) On receipt of a recommendation from the Registrar under subsection (4) and after consideration of all such matters as he may consider relevant, the Minister may in his discretion direct the Registrar to register the society as a building society. (6) The decision of the Minister under this subsection shall be final, and shall forthwith be communicated to all persons interested therein. (7) On receipt of a direction by the Minister under subsection (5), the Registrar shall, upon payment to him of the prescribed fee, register the society under this Act as a building society and record his approval of the rules, and shall endorse on a copy of the rules presented to him for that purpose the date of registration of the society, and shall issue a certificate of registration.

Registrar may inspect books and accounts of any association.

11. The Registrar may at any time make an inspection or cause an inspection to be made of the books, accounts and records of any association of persons for the purpose of determining whether the association is a building society or not.

Effect of registration.

12. (1) From the date of registration of a building society under this Act such society shall be a body corporate which shall be capable of suing and of being sued in its registered name and subject to this Act, of doing all such acts as a body corporate may by law perform. (2) Whenever a society which is registered under a law relating to companies is registered under this Act, the Registrar shall notify the Registrar of companies in writing of such registration, and the Registrar of companies shall thereupon strike the name of the society off the register of companies.

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Conclusiveness of certificate of registration.

13. A certificate of registration of a building society issued by the Registrar shall, upon its mere production, in the absence of proof of fraud, be conclusive evidence that all the requirements of this Act in respect of registration and of matters precedent and incidental thereto have been complied with and that the society is duly registered.

Cancellation or suspension of registration.

14. (1) Where the Registrar has reasonable grounds for believing that — (a) a certificate of registration has been obtained for a building society by fraud or mistake; (b) a building society exists for an illegal purpose; (c) a building society has wilfully and after notice from the Registrar exceeded its powers or contravened this Act; or (d) a society has ceased to conduct business as a building society; he may, with the approval of the Minister, apply to the Court for an order for the cancellation or suspension of the registration of the society. (2) The Registrar shall, before making any such application, give the society not less than two months’ notice in writing of his intention to make the application, specifying briefly the grounds of the proposed application. (3) The Court may order the cancellation of the registration of the society or order the suspension of such registration for such period as it thinks fit, and may attach to any order such conditions as it thinks desirable, or may make any other order which in the circumstances it thinks desirable. (4) The Registrar shall forthwith give effect to any order for cancellation or suspension of registration. (5) Unless the Court otherwise orders, the costs in connection with the application shall be paid by the society and shall be first charge upon the assets of the society. (6) The Registrar shall cancel the registration of a building society if the society by resolution, passed at a special general meeting convened for the purpose, resolves that the registration of the society be cancelled: Provided that such resolution is passed by a majority of the members voting in accordance with the rules of the society; and Provided further that where the members voting in favour of such resolution do not hold more than one half of the value of shares of the society, as shown in its books, the resolution shall not become effective until the concurrence in writing is obtained of other members whose shares together with the shares of the members who voted in favour of the said resolution exceed in value one half of the total value of shares of the society, as shown in its books. (7) The Registrar shall, as soon as practicable after any cancellation or suspension under subsection (3) or (6), cause notice thereof to be published in the Gazette and in a newspaper circulating in Swaziland. (8) Any cancellation or suspension of registration shall be without prejudice to any right acquired by any person against the society before the publication of the notice referred to in subsection (7).

Name of building society.

15. (1) No society shall be registered by a name which is identical with that of a registered building society or which so nearly resembles such name as to be calculated to deceive unless the registered society is in liquidation and consents to the registration. (2) The Registrar may refuse to register a society by a name which in his opinion is calculated to mislead the public or to cause offence to any person or class of persons or is suggestive of blasphemy or indecency, and shall so refuse, if, in his opinion the name imports or suggests that the society enjoys the patronage of His Majesty the King or of the Government or any department thereof.

Change of name of building society.

16. (1) A building society may change its name by resolution passed at a special general meeting called for the purpose:

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Provided that such resolution shall be passed by a majority of the members voting in accordance with the rules; and Provided further that where the members voting in favour of such resolution do not hold more than one half of the value of shares of the society as shown in its books, the resolution shall not become effective until the concurrence in writing is obtained of other members whose shares together with the shares of the members who voted in favour of the said resolution exceed in value one half of the total nominal or face value of the shares of the society as shown in its books. (2) Subject to section 15, the Registrar shall, upon receipt of notice of such change of name, enter the new name in his records in place of the former name and shall issue a certificate of registration to the society under its new name. (3) The change of name shall not affect any right or obligation of the society or of any member thereof, or other person concerned, or render defective any legal proceedings by or against the society and any legal proceedings that may have been commenced or continued by or against it under its former name may be continued under its new name. (4) The Registrar of deeds shall upon production to him by the society of any mortgage bond or of the title deeds of any immovable property belonging to the society and a certificate by the Registrar of the registration of the society under its new name and upon payment of the fees that may be payable in terms of any law relating to deeds offices, make such endorsements upon such bond or title deeds and such alterations in his registers as are necessary by reason of the change of name.

PART III

POWERS OF BUILDING SOCIETIES, DEPOSITS, SHARES, ADVANCES AND FINANCIAL PROVISIONS WITH RESPECT TO BUILDING SOCIETIES

Powers of building societies.

17. (1) Subject to this Act a building society may — (a) acquire or retain the ownership of land or the lease of land and erect buildings thereon primarily required for the administration of the society’s affairs, and from time to time alienate such land or terminate or cede such lease and acquire or hire other or further land for like purposes, and let such portion of the buildings in which the business of the society is carried on as may not be required for the purposes of the society: Provided that the total value of land acquired and buildings erected shall not, without the consent in writing of the Registrar, exceed an amount equal to ten per centum of the total assets as stated in the most recent report submitted to the Registrar in the prescribed form. (Amended A.16/1992.) (b) buy in immovable property mortgaged to the society or acquire leases of land ceded to the society in security for debt and hold such immovable property or leases for a period which shall not exceed five years without the authority of the Registrar; (c) receive savings deposits; (d) receive fixed deposits; (e) borrow money at interest other than in the form of deposits, from a bank, or if the terms are approved in writing by the Registrar from any person other than a banker, and arrange overdraft facilities with a bank approved by the Registrar; (f) from time to time issue shares of such classes and denominations, with or without accumulating dividends, and with such preferential rights regarding dividends and capital, and subject to such conditions of transfer and repayment as may be decided by the society in accordance with its rules; (g) hold cash and make deposits with a bank approved by the Registrar; (Amended A.7/1980.) (h) lend or advance money at interest to members and others on the security of mortgages or cessions, and negotiate the purchase or sale and the hiring or letting by members or others of immovable property mortgaged or to be mortgaged to the society; (Amended K.O-I-C. 12/1974.) (i) lend money to members and others on the security of their deposits and to members on the security of their shares;

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(j) invest in such bills, bonds, certificates, debentures, stock or municipal loans as may be approved by the Registrar; (Amended A.7/1980.) (k) act as the agent of insurance companies in effecting insurances in respect of property mortgaged or to be mortgaged to the society and any other insurances designed to secure a debt to the society and collect on behalf of such companies the premiums in respect of any insurances pledged to the society; (l) pay pensions or gratuities to its employees, or establish a pension fund or adopt a pension scheme for providing pensions or gratuities for its employees, or join with other societies in establishing or adopting any such fund or pension scheme; (m) receive call deposits; (Added A.16/1992.) (n) enter into any contract whereby, in return for one or more sums of money paid to the society, the society agrees to pay a sum of money at a future date or a series of sums of money at future dates, and issues a certificate to the depositor which entitles the holder to receive such sums of money; (Added A.16/1992.) (o) operate a transmission account; (Added A.16/1992.) (p) do all lawful things incidental or conducive to the powers conferred upon it in terms of this section; and (Amended A.16/1992.) (q) undertake such other business as may be prescribed. (Amended A.16/1992.) (2) A building society shall not undertake any business other than that authorised by this section. (Amended A.16/1992.)

Minors and married women may be members of building society.

18. Unless otherwise provided by the rules of the society, a minor over the age of sixteen years or a married woman whether under marital power or not may be a member or depositor of any building society and may without assistance execute all necessary documents, give all necessary acquittances and enjoy all the privileges (except that a minor shall not hold office) and be liable to all the obligations attaching to members or depositors.

Conditions in regard to savings deposits and fixed deposits.

19. (1) No building society shall — (a) accept any deposit except as a savings deposit, fixed deposit, call deposit or other deposit as referred to in section 17(1)(n) and (o); (Amended A.16/1992.) (b) (Repealed A.16/1992.) (c) allow any savings deposit to be withdrawn except after due notice given in accordance with its rules; (Amended A.16/1992.) (d) allow any deposit to be withdrawn by cheque, draft or order payable on demand; or (Amended A.16/1992.) (e) allow a notice of withdrawal of a savings deposit to run concurrently with a notice of withdrawal which was previously given. (Amended A.7/1980.) (2) The directors in their discretion may authorise the withdrawal of a fixed deposit before its due date. (Added A.16/1992.)

Maximum savings deposit or fixed deposit by individual. (First Schedule)

20. (Repealed A.16/1992.)

Saving in the case of deposits by a trustee.

21. Notwithstanding section 20 a building society may accept deposits from a trustee for different trusts which exceed in the aggregate the limits specified in that section if the amount deposited in respect of each individual trust does not exceed such limits.

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Conditions relating to shares.

22. No building society shall — (a) issue any shares other than permanent shares, fixed-period shares or subscription shares; (b) issue any permanent share or fixed-period share unless it is paid for in full when the application for such share is accepted; (c) issue any share at a value other than its nominal or face value; or (d) pay dividends on shares except out of profits. (Amended A.7/1980.)

Maximum shareholding by individual.

23. No building society shall, except with the written consent of the Registrar and subject to such conditions as he may determine, allow any one person to hold fixed-period or subscription shares in excess of forty-nine per centum of the total value of such shares. (Amended A.16/1992.)

Building society may redeem share in certain circumstances.

24. Notwithstanding this Act a building society may redeem any share — (a) at any time if the owner and the society agree to the redemption; or (b) in the event of the death or insolvency of the holder thereof if the executor or trustee, as the case may be, consents thereto.

Advances must be reducible or fixed-term advances.

25. (1) No building society shall, on the security of a mortgage or cession, make any advance other than a reducible advance or a fixed-term advance. (2) The terms of a reducible advance shall provide for the annual reduction of the capital amount outstanding and for the repayment of the total capital amount within a period of not more than thirty years. (3) If any portion of the capital amount advanced has been repaid to the society and the society has re-advanced an amount equal to the portion so repaid, the capital amount of the original advance still outstanding and the amount so re- advanced shall be repaid within a period of not more than thirty years calculated from the date of the original advance. (4) The terms of a fixed-term advance shall provide that the capital amount advanced shall be due for repayment within a period of not more than thirty years. (Amended A.16/1992.) (5) The aggregate amount of fixed-term advances shall at no time exceed fifty per cent of the total amount of all advances made by a society on the security of mortgages and cessions. (Amended A.16/1992.)

Limit as to amount of advance.

26. (1) Subject to subsection (2), no building society shall make an advance on the security of a mortgage or cession in excess of one hundred per centum of the value of the property mortgaged or the lease ceded as determined at the time of making the advance. (Amended A.16/1992.) (2) A building society may in conjunction with an advance made on the security of a mortgage or cession, make an additional advance against collateral security on such terms and conditions as may be determined by the Registrar.

The Minister may guarantee repayment of advances.

27. (1) The Minister may, on such terms and conditions as he may determine, guarantee the repayment of advances made by a building society on the security of a mortgage or cession. (2) Any guarantee given in terms of this section shall be deemed to be collateral security for the purposes of section 26(2).

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Limit as to amount of advance when the Minister has guaranteed repayment.

28. The total amount of any advance and of any additional advance of which the Minister has guaranteed repayment in terms of section 27 shall not exceed in any individual case ninety per cent of the value of the property mortgaged or the lease ceded as determined at the time of making the advance.

Methods of calculating interest must be stated in advertisement relating to advances.

29. (Repealed A.7/1980.)

Advance on property already mortgaged prohibited.

30. No building society shall advance money on the security of immovable property which is subject to an existing mortgage bond unless such existing mortgage bond is in favour of the society, but a building society and another party may jointly advance money on the security of immovable property. (Amended A.16/1992.)

Building society may make further advances for certain purposes.

31. Notwithstanding sections 26 and 28 a building society may for the purpose of protecting immovable property mortgaged or a lease ceded to it or for the purpose of maintaining its security for the repayment of an advance, make further advances in respect of — (a) premiums on insurance policies designed to provide further security for the repayment of an advance; (b) rates and taxes in respect of the said immovable property; (c) the maintenance and repair of the said immovable property; and (d) the installation of sewerage on the said immovable property.

Limitation of sums to be advanced to borrowers.

32. (Amended K.O-I-C. 12/1974; A.7/1980; Repealed A.16/1992.)

Valuation of property for purposes of advance.

33. (1) No building society shall make any advance unless it is based upon a valuation made in accordance with subsections (2), (3) and (4) by a valuator, appointed by the society for the purpose. (2) Every valuator shall make a personal inspection of the immovable property concerned: Provided that a valuator shall not be required to make such inspection in the case of vacant land with which he is personally acquainted. (3) Every valuator shall record his valuation and the date of his inspection on a prescribed form and shall sign such form. (4) In the case of immovable property which is acquired by purchase not more than six months before the date of valuation, the valuation shall not exceed the true purchase price of such property as declared by the parties concerned for transfer duty purposes by more than one hundred emalangeni unless the board of directors of the society resolves that in its opinion on the information furnished to it a stipulated valuation in excess of such purchase price is reasonably justified.

Valuator must have no pecuniary interest in advance.

34. (1) No building society shall appoint as a valuator, in terms of section 33(1), any person who has any direct or indirect pecuniary interest other than the payment of fees for professional or legal services in the granting of an advance. (2) No person shall make any valuation for the purposes of section 33(1) if he has any direct or indirect pecuniary interest in the granting of an advance other than the payment of fees for professional or legal services, or if he is related within the third degree of consanguinity or affinity to any person having such interest in the granting of an advance. (3) Any building society or person contravening this section shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand emalangeni.

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Duty of director, etc. to disclose interest in advance.

35. (1) Every director, local director or member of a local committee of a building society who has any direct or indirect pecuniary interest in the granting of an advance shall declare the nature and extent of such interest at any meeting of the directors, local directors or local committee of the society where the granting of such advance or the valuation of any property offered as security for such advance is considered. (2) No such director, local director or committee member shall take part in the discussion at such meeting or exercise his vote thereon. (3) Any person who contravenes this section shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand emalangeni.

Building society may recover certain amounts in addition to amounts entitled to under mortgage or cession.

36. A building society may obtain judgment for and recover any amount disbursed by it on behalf of any person to whom it has made an advance on the security of a mortgage or cession in respect of — (i) premiums on issuance policies designed to provide further security for the repayment of the advance; (ii) rates, taxes and fees in respect of the immovable property which has been mortgaged or the lease of which has been ceded; (iii) the maintenance and repair of the said immovable property; and (iv) the installation of sewerage on the said immovable property; in addition to the amounts which it would be entitled to obtain judgment for and recover under such mortgage or cession.

Registrar may examine building society books.

37. (1) The Registrar may at any time call for any documents and any other information relating to advances made by a building society and at any time, personally or through a person designated by him, examine any books or documents relating to the advances made by a building society. (2) Section 58 shall apply mutatis mutandis in regard to any such examination.

Non-compliance with Act does not invalidate advance.

38. No advance or loan made by a building society shall be invalidated by reason only of the fact that the society or any officer thereof has, in connection with such advance or loan, contravened or failed to comply with this Act.

Establishment of statutory reserve fund.

39. (1) Every building society shall establish a fund to be known as the statutory reserve fund. (2) Subject to subsection (3) a building society shall at the end of each financial year pay into the statutory reserve fund an amount which shall not be less than ten per cent of its ascertained net profits. (3) If and so long as the amount standing to the credit of the statutory reserve fund is equal to or more than ten per cent of the sum of the society’s total liabilities to depositors and in respect of loans and overdrafts received and the paid-up share capital of the society, it shall not be obliged to make the payment referred to in subsection (2). (4) No dividend bonus or donation shall be paid out of the statutory reserve fund. (5) Moneys standing to the credit of the statutory reserve fund shall be invested in approved investments or any loans or advances to members or others on the security of mortgages or cessions in terms of section 17(1)(h). (6) A building society may charge against the statutory reserve fund any net loss remaining to the society in any year after applying to such loss any undistributed profits brought forward from previous years. (7) For the purposes of this section, “net profit” and “net loss” shall be construed as the profit or loss, as the case may be, of a building society after deduction of expenses and of all dividends on the shares of the society during the financial year to which such profit or loss relates. (Added A.7/1980.)

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Restriction on pledging of investments and mortgages.

40. (1) A building society shall not pledge any approved investment as security for a loan or overdraft unless it holds in cash or on authorised deposit or in approved investments sufficient assets, excluding the investment so pledged, to enable it to comply with the requirements of section 42. (2) A building society shall not pledge any mortgage as security for a loan or overdraft unless it holds sufficient unencumbered assets in cash, or on authorised deposit, or in approved investments, or in mortgages to cover the total amount of its liabilities as set out in section 42(1) including any amount received on the security of such pledge.

Restriction on borrowing.

41. (1) Subject to this section, a building society shall manage its affairs in such a way that the sum of its permanent share capital and that portion of its fixed-period share capital which consists of shares which are not due for redemption within the ensuing three years and the amount of its statutory funds does not at anytime amount to less than an amount which represents a prescribed percentage of the sum of amounts calculated by multiplying all balance sheet and off-balance sheet amounts by risk weights expressed as percentages. (Amended A.16/1992.) (1bis) The Registrar may from time to time by notice in the Gazette prescribe both the risk weights and the percentage capital ratio requirement. (Added A.16/1992.) (2) For the purposes of subsection (1)(b) the amount of the paid-up share capital shall be deemed to be reduced by the aggregate amount owing to the society on loans made against the security of shares in the society: Provided that in any case where an advance made by the society is secured by a mortgage or by a cession in addition to a pledge of shares in the society, the amount of the paid-up share capital shall be deemed to be reduced only by the amount by which the advance exceeds seventy-five per cent of the value of the property which is mortgaged or of the lease which is ceded, as the case may be. (3) Of the paid-up share capital taken into account for the purposes of subsection (1)(b) not less than three quarters shall consist of permanent share capital and that portion of the fixed-period share capital which consists of shares which are not due for redemption within the ensuing three years. (Amended A.10/1970.)

Building society must hold certain amount daily as security for repayments.

42. (1) Subject to the provisions of this section, every building society shall, after making provision to meet its liabilities other than those mentioned in this section, hold from day to day an amount in cash or on authorised deposit or in approved investments as security for the prompt repayment of fixed-period and subscription shares and of deposits, loans and overdrafts and for the payment of interest accrued thereon. (2) Such amount shall not be less than the sum of the following amounts — (a) an amount equal to thirty per cent of the aggregate amount of its liabilities in respect of — (i) unsecured bank loans and overdrafts; (ii) other loans to the extent to which the lenders may demand repayment within a period of one year; (iii) interest accrued on all loans and deposits; (Amended A.7/1980.) (b) an amount equal to twelve per cent of the aggregate amount of its liabilities in respect of — (Amended A.7/1980.) (i) fixed deposits; (ii) subscription shares issued for a period of not more than five years and fixed-period shares, which are due for redemption within the ensuing three years; (iii) loans to the extent to which lenders may demand repayment within a period of five years but excluding any amount which has been taken into account in computing its liabilities in respect of such loans in accordance with paragraph (a):

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Provided that where deposits or fixed-period shares have been pledged to the society as security for advances made by the society, the liabilities of the society as calculated for the purposes of this paragraph shall be reduced by the amount of the deposits or fixed-period shares which at any time remain pledged to the society; (c) an amount equal to ten per cent of the aggregate amount of its liabilities in respect of — (i) savings deposits; (Amended A.7/1980.) (ii) loans other than any specified in paragraph (a) and (b) and repayable after a period of five years: Provided that where shares have been pledged against advances made by the society, the liabilities of the society as calculated for the purposes of this paragraph shall be reduced by the value of the shares which at any time remain pledged to the society; and (d) an amount equal to twenty per cent of the aggregate amount of its liabilities in respect of advances which the society has undertaken to make but which have not yet been made. (Amended A.7/1980.) (3) For the purposes of this section an approved investment shall be valued at the cost thereof to the society or the market value thereof, whichever is the lower. (4) The amount held by a building society for the purposes of this section shall not include any moneys belonging to its statutory reserve fund. (5) A building society shall not pledge or otherwise encumber any moneys, deposits or investments held for the purposes of this section: Provided that the Registrar may in special circumstances permit a society to pledge or otherwise encumber such moneys, deposits or investments to such extent, and for such period and on such terms and conditions as he may determine. (Amended A.10/1970.)

Minimum local assets. 42bis. The Registrar may from time to time, by notice in the Gazette, prescribe that a building society shall maintain minimum local assets, that is to say assets (other than claims) situate in Swaziland and assets consisting of claims payable in Swaziland, of an amount to be determined as a percentage, not exceeding one hundred per centum, of the aggregate of its total capital reserves and liabilities to the public in Swaziland as stated in the most recent report submitted to the Registrar in the prescribed form: Provided that a building society shall be afforded a reasonable period within which to comply with the requirements of such notice; and Provided further that no such building society shall be required to augment its holdings of local assets during any calendar month by an amount in excess of ten per centum of the aggregate value referred to in this section. (Added A.16/1992.)

PART IV

MANAGEMENT AND ADMINISTRATION

Head office of a building society.

43. (1) Every registered building society shall have its head office in Swaziland or, in the case of a foreign building society registered under this Act, such society shall have a principal office in Swaziland. (2) Notice in writing of the situation and postal address of the head or principal office shall be lodged by the society with the Registrar when application for the registration of the society is made, and whenever any change takes place in the situation of the head or principal office a notice in writing of the change shall be lodged by the society with the Registrar within fourteen days thereof.

Financial year of a building society.

44. The financial year of every building society shall end on the thirty-first day of March.

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Periodical statements as to financial position.

45. Every building society shall at such intervals and in such form as may be prescribed, transmit to the Registrar a statement signed by the secretary, setting out the financial position of the society in relation to the requirements of sections 41 and 42. (Amended A.7/1980.)

Annual accounts.

46. (1) Every building society shall at the end of every financial year prepare — (a) an account of all the revenue and expenditure of the society since the close of the period covered by the preceding account; (b) a statement of its assets and liabilities; and (c) such subsidiary statements as may be prescribed; which account and statements shall include such information and shall be prepared in such form as may be prescribed. (2) No such account and statement shall include as an asset any sum representing expenses of organisation or extension or the purchase of business or goodwill unless provision is made for the writing off of such sum during a period not exceeding five years. (3) A copy of every such annual account and statement shall be sent to the Registrar within such period as the Minister may determine.

Building society must provide fidelity cover.

47. (1) Every building society shall, either by insurance with an insurance company approved for such purpose by the Registrar or by the establishment of a fund for the purpose, furnish and maintain such security as the Registrar deems adequate to make good any loss resulting from the negligence or dishonesty of any of the society’s officers. (2) The assets of any fund established in terms of subsection (1) may be invested in deposits with the society, but shall not in any other way be merged with the assets of the society.

Annual and special general meetings.

48. (1) Every building society shall hold a general meeting designated the annual general meeting within six months after the close of every financial year which shall be held at the head or principal office of the society or at such other convenient place and at such time as may be prescribed by the rules of the society. (2) The following matters shall be dealt with at the annual general meeting — (a) consideration of the accounts and statements referred to in section 46; (b) the report of the directors; (c) the report of the auditor; and the election of directors and the financial position of the society may be considered and general business transacted. (3) A special general meeting may be convened by three or more directors and shall be convened by the board of directors on the requisition of fifty members holding permanent shares or not less than one tenth of the whole body of members holding permanent shares if the membership is less than five hundred, or of such smaller number or proportion of members holding permanent shares as the rules of the society may provide. (Amended A.7/1980.) (4) If within fourteen days after the receipt of such a requisition, a special general meeting of the society is not convened by the board of directors, it may be convened by the requisitioners or a majority of them. (5) Notice of annual and special general meetings of a building society shall be given to members holding permanent shares, the Registrar and the auditor of the society in accordance with the rules, and shall specify the day, hour and place and the objects of the meeting, and if any alteration, rescission or addition to the rules is intended to be proposed, the notice shall contain every such alteration, rescission or addition. (Amended A.7/1980.)

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(6) Notice of an annual general meeting of a building society shall be given to all other members by a notice published in the Gazette and in an English medium and in a siSwati medium newspaper registered in the Kingdom of Swaziland at least twenty-one days prior to the date of such meeting. (Added A.7/1980.)

Minutes of proceedings of meetings of a building society or directors.

49. (1) Every building society shall cause minutes of all proceedings of general meetings and all proceedings at meetings of its directors to be entered in the English language in books kept for that purpose. (2) Any such minutes if purporting to be signed by the chairman of the meeting at which the proceedings took place, or by the chairman of the next succeeding meeting, shall be evidence of the proceedings.

Inspection of minute books.

50. (1) The books or copies of the books certified by a director or the secretary containing the minutes of proceedings of any general meeting of a building society shall be kept at the registered office of the society, and shall during business hours (subject to such reasonable restrictions as the society may by its rules or in general meeting impose, so that not less than two hours in each day be allowed for inspection) be open to the inspection of any member without charge. (2) Any member shall be entitled to be furnished within fourteen days after he has made a request in that behalf to the society with a copy of such minutes as aforesaid certified by the secretary or a director, as correct, at a charge not exceeding twenty cents for every hundred words.

Keeping of books of account.

51. (1) Every building society shall cause proper books of account to be kept namely such books as are necessary to give a true and fair view of the state of the society’s affairs and to explain transactions. (2) The books of account shall be kept at the head or principal office of the society or at such other place within Swaziland as the directors think fit, and shall at all times be open to inspection by the directors.

Appointments of auditors.

52. (1) Every building society shall at each annual general meeting appoint an auditor to hold office from the conclusion of that meeting until the conclusion of the next annual general meeting. (2) The society shall notify the Registrar of the appointment within fourteen days of such meeting. (3) If a building society fails or refuses to make such appointment at an annual general meeting, the Registrar shall appoint an auditor of the society to hold office until the conclusion of the next annual general meeting, and fix the remuneration to be paid to him by the society for his services. (4) A retiring auditor shall be eligible for re-appointment and no person other than a retiring auditor shall be appointed auditor at an annual general meeting unless notice of an intention to nominate that person to the office of auditor has been given by a member of the society not less than twenty-eight days before the annual general meeting and the society shall give its members notice of the meeting or, if that is not practicable, shall give them notice thereof, either by advertisement in a newspaper having an appropriate circulation or by any other method allowed by the rules, not less than twenty-one days before the meeting. (5) The first auditor of the society may be appointed by the directors and hold office until the first annual general meeting, unless previously removed by a resolution of the members in special general meeting, in which case the members at that meeting shall appoint an auditor. (6) The directors of a society may fill any casual vacancy in the office of auditor, but while any such vacancy continues the surviving or continuing auditor or auditors, if any, may act. (7) Subject to subsection (3) the remuneration of auditors of a building society shall be fixed by the society in general meeting, but the remuneration of the first auditor or of an auditor appointed to fill any casual vacancy may be fixed by the directors.

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Disqualification for appointment as auditor.

53. (1) None of the following persons shall be qualified for appointment as auditors of a building society — (a) an officer or servant of the society; (b) a person who is a partner of an officer or servant of the society; (c) a person who is an employer or an employee of an officer or servant of the society; (d) a body corporate; (e) a person who by himself, or his partner or his employee, regularly performs the duties of secretary, or book- keeper to the society. (2) Any reference in subsection (1) to an officer or servant shall not include an auditor. (3) Any person who is disqualified in terms of subsection (1) and who acts as auditor of a society when so disqualified shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred emalangeni.

Contents of auditor’s report.

54. (1) The auditor of a building society shall make a report to the members of such society on the accounts examined by him on every balance sheet and every profit and loss account laid before the society in general meeting during his tenure of office, and the report shall contain statements as to the following matters — (a) whether he has obtained all the information and explanations which to the best of his knowledge and belief were necessary for the purposes of his audit; (b) whether, in his opinion, proper books of account have been kept by the society, so far as appears from his examination of these books; (c) whether, in his opinion, the balance sheet and profit and loss account dealt with by the report are in agreement with the books of account and returns; (d) whether, in his opinion and to the best of his information and according to the explanations given to him, the said accounts give a true and fair view, in the case of the balance sheet of the state of the society’s affairs as at the end of its financial year, and in the case of the profit and loss account of the profit or loss for its financial year; (e) that he has at the audit actually inspected or been given satisfactory evidence of the existence and the contents of the mortgage bonds and other securities belonging to the society; (f) whether the accounts show a financial position as at the end of the financial year which is in accordance with the requirements of sections 39, 41 and 42. (2) In the event of the auditor being unable to make such report or to make it without qualification, he shall inscribe upon or attach to the balance sheet a statement of that fact or of the nature of the qualification, as the case may be, and he shall set forth therein the facts or circumstances which prevent him from making the report or from making it without qualification. (3) The auditor’s report or any statement under subsection (2) shall, unless all the members present agree to the contrary, be read before the society in general meeting, and shall, in any event, be open to inspection by any member.

Auditor’s right of access to books and to attend general meetings.

55. (1) Every auditor of a building society shall have a right of access at all times to the books, accounts, vouchers, and securities of the society, and shall be entitled to require from the officers of the society such information and explanation as he thinks necessary. (2) Every auditor of a building society shall be entitled to attend any general meeting of the society and to receive all notices of and other communications relating to any general meeting which any member of the society is entitled to receive and to be heard at any general meeting which he attends on any part of the business of the meeting which concerns him as auditor.

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Investigation of a building society’s affairs on application of members.

56. (1) The Registrar may on the application of fifty members of the society or of one-tenth of all the members if the membership of the society is less than five hundred appoint one or more inspectors to investigate the affairs of a building society and to report thereon in such manner as he may direct. (2) The application shall be supported by such evidence as the Registrar may require for the purpose of showing that the applicants have good reason for requiring the investigation, and the Registrar may, before appointing an inspector, require the applicants to give satisfactory security in an amount not exceeding four hundred emalangeni for payment of the costs of the investigation.

Investigation of a building society’s affairs in other cases.

57. Without prejudice to his powers under section 56, the Registrar may appoint one or more inspectors to investigate the affairs of a building society and to report thereon in such manner as he directs if — (a) after notice given by the Registrar it has for two months therefrom failed to make any return required by this Act; (b) after notice given by the Registrar it has for two months therefrom failed to correct or complete any such return; (c) the Registrar is in possession of information which in the opinion of the Minister calls for an investigation into its affairs.

Production of documents and evidence on investigation.

58. (1) All officers and agents of the building society whose affairs are investigated by virtue of section 56 or 57 shall produce to the inspector all securities, accounts, books and documents of or relating to the society which are in their custody or power and otherwise to give to the inspector all assistance in connection with the investigation which they are reasonably able to give. (2) The inspector may examine the officers and agents of the society on oath in relation to its business and may administer an oath accordingly. (3) If any officer, auditor, member, agent or servant of the society refuses to be sworn, or to produce any such securities, accounts, books or documents, or to answer any question put to him by such inspector relating to the affairs of the society, notwithstanding that the answer may tend to incriminate him, he shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred emalangeni. (4) Any person who, having been sworn by any such inspector, knowingly makes any false statement in relation to any matter which is the subject of that investigation, shall be deemed to be guilty of perjury and punishable accordingly. (5) If an inspector thinks it necessary for the purpose of his investigation that a person other than a person whom he is empowered to examine on oath should be so examined, he may apply to a Magistrate’s Court and such Court may if it sees fit order that person to attend and be examined on oath before it on any matter relevant to the investigation, and on any such examination — (a) the inspector may take part therein either personally or by attorney or counsel; (b) such Court may put such questions to the person examined as the Court thinks fit; (c) the person examined shall answer all such questions as such Court may put or allow to be put to him, but may at his own cost employ an attorney with or without counsel who shall be at liberty to put to him such questions as such Court may deem just for the purpose of enabling him to explain or qualify any answers given by him. (6) Notes of the examination shall be taken down in writing, and read over to or by, and signed by, the person examined, and may thereafter be used in evidence against him. (7) Notwithstanding subsection (5)(c), such Court may allow the person examined such costs as in its discretion it may think fit, and any costs so allowed shall be paid as part of the expenses of the investigation.

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(8) In this section any reference to officers or to agents shall include past as well as present officers or agents, as the case may be, and for the purpose of this section the expression “agents” in relation to a society shall include the bankers and attorneys of the society and any persons employed by the society as auditors, whether those persons are or are not officers of the society.

Inspector’s reports.

59. (1) The inspector may, and if so directed by the Registrar, shall, make interim reports to the Registrar, and on the conclusion of the investigation shall make a final report to the Registrar. (2) The Registrar shall — (a) send a copy of any report made by the inspector to the registered office of the building society; (b) where the inspector is appointed under section 56, he shall furnish each applicant for the investigation, on request, with a copy of the report; and may cause the report to be printed and published.

Proceedings on inspector’s report.

60. If from any report made under section 59 it appears to the Registrar that any person has, in relation to the building society whose affairs have been investigated, been guilty of an offence for which he is criminally liable, he shall refer the matter to the Attorney-General.

Expenses of investigation of a building society’s affairs.

61. (1) The expense of and incidental to an investigation by an inspector appointed by the Registrar under this Act shall be defrayed in the first instance by the Registrar, out of the Consolidated Fund, but the following persons shall, to the extent mentioned, be liable to repay the Registrar — (a) any person who is convicted on a prosecution instituted as a result of the investigation may in the same proceedings be ordered to pay the said expenses to such extent as may be specified in the order; (b) unless as a result of the investigation a prosecution is instituted, the applicants for the investigation, where the inspector was appointed under section 56 shall be liable to such extent, if any, as the Registrar may direct. (2) The report of an inspector appointed otherwise than of the Registrar’s own motion may, if he thinks fit, and shall, if the Registrar so directs, include a recommendation as to the directions, if any, which he thinks appropriate, in the light of his investigation, to be given under subsection (1)(b). (3) Any liability to repay the Registrar imposed by subsection (1)(a) shall, subject to the satisfaction of the Registrar’s rights to repayment, be a liability also to indemnify all persons against liability under subsection (1)(b), and any person liable under subsection (1)(a) or (b) shall be entitled to a contribution from any other person liable thereunder according to the amount of their respective liabilities thereunder.

Saving for attorneys and bankers.

62. Nothing in this Act shall require disclosure to the Registrar or to an inspector appointed by him by — (a) an attorney of any privileged communication made to him in that capacity, except as respects the name and address of his client; or (b) a building society’s bankers as such of any information as to the affairs of any of their customers other than the society.

Inspector’s report to be evidence.

63. A copy of any report of an inspector appointed under this Act shall be admissible in any legal proceeding as evidence of the opinion of the inspector in relation to any matter contained in the report.

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Directors and secretary.

64. (1) Every building society shall have at least two directors and a secretary. (2) The business of every registered building society shall be managed by a board of directors. (3) A director shall be elected for a period not exceeding three years, but shall be eligible for re-election. (4) Whenever a casual vacancy occurs, a person may be appointed by the remaining directors to fill the vacancy until the next annual general meeting, and a person elected at that meeting shall fill the vacancy for the unexpired period of office of the vacating director. (5) Vacancies shall be filled at the annual general meeting by election by a majority of the members voting in accordance with the rules. (6) The society shall within fourteen days of the appointment under subsection (4) or the election under subsection (5) send to the Registrar a notice of the appointment or election signed by the director appointed or elected and by the secretary of the society.

Validity of acts of director.

65. The acts of a director shall be valid notwithstanding any defect that may afterwards be discovered in his appointment or qualification.

Disqualification from appointment as director.

66. (1) The following persons shall be disqualified from being appointed a director of a building society — (a) a body corporate; (b) a minor or any other person under legal disability; Provided that a woman married in community of property may be a director if her husband gives his written consent is lodged with the Registrar; (c) save with the leave of the Court; (i) an unrehabilitated insolvent; (ii) any person who has at any time been convicted, whether in Swaziland or elsewhere, of theft, fraud, forgery, or uttering a forged document, or perjury, and has been sentenced therefor to serve a term of imprisonment without the option of a fine, or to a fine exceeding one hundred emalangeni; (iii) any person removed by a competent Court from an office of trust on account of misconduct. (2) A director of any building society shall cease to hold office as such if, after the date of commencement of this Act — (a) his estate is sequestrated; (b) he is convicted, whether in Swaziland or elsewhere, of theft, fraud, forgery or uttering a forged document, or perjury and has been sentenced therefor to serve a term of imprisonment without the option of a fine, or to a fine exceeding one hundred emalangeni; (c) he is removed by the Court from any office of trust on account of misconduct. (3) If any person who is disqualified under this section from being or continuing to be a director of any building society directly or indirectly takes part in or is concerned in the management of any such society, he shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand emalangeni or to imprisonment for a period not exceeding two years, or to both. (4) This section shall not prevent a building society from applying under its rules any further disqualification for the appointment of, or the retention of office by, a director.

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Amalgamation of two or more building societies.

67. (1) Subject to this section, two or more building societies may, with the approval of the Registrar, amalgamate and become one building society with or without liquidation of either or any of them, or a building society may transfer all its assets and liabilities to another building society. (2) The proposal for an amalgamation or transfer in terms of subsection (1) and the terms and conditions of such amalgamation or transfer shall require the agreement of three-fourths of the members voting in person or by proxy at general meetings convened for the purpose by each society concerned in such amalgamation or transfer. (3) Notice of every amalgamation or transfer and the terms thereof shall be sent to the Registrar and registered by him. (4) Upon the completion of the amalgamation in terms of this section the societies amalgamated shall be deemed to be dissolved, and their registration having been cancelled the Registrar shall register the new society in terms of this Act. (5) Upon completion of the transfer of the assets and liabilities of one society to another society, the former society shall be deemed to be dissolved and its registration shall be cancelled. (6) The liquidator of a building society which is being wound up in terms of section 69 or the judicial manager of a building society may subject to this section, transfer all the assets and liabilities of the society being wound up or under judicial management to another building society. (7) Any alteration or endorsement upon bonds or title deeds held in the deeds office and any alteration in the deeds register, which is necessary by reason of such amalgamation or transfer, shall be exempted from transfer or stamp duties or registration fees or charges. (8) The amalgamation of building societies or the transfer of assets and liabilities in terms of this section shall not affect the rights of the creditors of either or any of the societies concerned.

Modes of winding up.

68. (1) The winding up of a building society may be by the Court, or voluntary. (2) The provisions of the law for the time being in force in regard to the winding up of a company shall mutatis mutandis apply to the winding up of a building society, subject to such adaptations or modifications as may be prescribed.

Liability of members.

69. In the event of a building society being wound up — (a) the liability of any member in respect of any subscription share shall be limited by the amount of any periodical contributions which are in arrears on each share at the commencement of such winding up; (b) no member shall be entitled to claim repayment of any amount actually paid on such share unless the claims of all creditors of the society have been paid in full; (c) a member shall be liable to repay any advance he has received from the society.

Liability of borrowers.

70. When a building society is being wound up, no member or other person to whom an advance has been made under any mortgage or other security or under the rules of the society shall be liable to pay the amount payable under such mortgage, security or rules, except at the time or times and subject to the conditions under which the advance was made.

Judicial management of building society.

71. (1) Whenever application is made to the Court for the liquidation of any building society on the ground that such society is unable to pay its debts, or that, by reason of its mis-management or of its probable inability to meet its obligations or become a successful concern or for some other cause, it is just and equitable that the society shall be wound up, and the Court, upon consideration of the facts, is of opinion that, notwithstanding any present inability of the society to meet its obligation or the existence of any other fact or circumstance alleged in the application, there is a reasonable probability that if the society is placed under judicial management as provided in this section it will be enabled to meet such obligations and

505 to remove the occasion for liquidation or dissolution, and that it is otherwise just and equitable that the grant of an order of liquidation should be postponed, the Court may, instead of granting a liquidation order, grant a judicial management order, to be of force, either for a period stated in the order or for an indefinite period. (2) A judicial management order may also be granted by the Court in respect of any building society on the application of any member or creditor, if it appears to the Court that, by reason of mismanagement or any other cause, it is desirable that the society should be placed under judicial management. (3) Any law providing for the judicial management of a company, shall mutatis mutandis apply to the judicial management of a building society subject to such adaptations or modifications as may be prescribed.

PART V

FOREIGN BUILDING SOCIETIES

Registration of foreign building societies.

72. (1) A building society incorporated outside Swaziland may apply for registration under this Act if its rules — (a) provide for the matters which in the case of building societies to be incorporated in Swaziland, are required by section 7; (b) contain no provision incompatible with this Act; and (c) expressly authorise it to carry on business in Swaziland or generally outside the country in which it is incorporated. (2) Every such application by a building society incorporated outside Swaziland shall be in the prescribed form and shall be accompanied by — (a) a copy of its rules and a copy of the certificate of incorporation, each certified in such manner as may be prescribed, and if they are not in the English language, certified translations thereof; (b) a statement of the situation and postal address of its principal office in the country of its incorporation; (c) a statement of the situation and postal address of its principal office in Swaziland; (d) a copy of its latest annual statement and account; (e) a statement of the name and address of its principal officer in Swaziland and the names and addresses of the directors and members of any local boards or committees. (3) The Registrar may in his discretion allow or refuse an application under subsection (1): Provided that any society aggrieved by the refusal of the Registrar to register a building society under subsection (1) may within one month or such extended period as the Minister may allow from the date of such refusal appeal against that refusal to the Minister whose decision shall be final. (4) Where an application under this section is allowed the Registrar shall register the society as a building society incorporated outside Swaziland and shall issue the society with a certificate of registration.

Provisions of this Act to apply.

73. (1) The provisions of this Act relating to building societies incorporated in Swaziland shall apply to building societies registered under section 72 in so far as that portion of their business carried on in Swaziland is concerned. (2) Every such society shall lodge a notice in writing with the Registrar advising him of any change in the name and address of its principal officer in Swaziland and of the names and addresses of the directors and members of any local board or committee within fourteen days of such change.

PART VI

GENERAL

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Lost or destroyed share certificates, etc.

74. (1) If any share certificate, savings deposit pass book, subscription share pass book or fixed deposit receipt issued by a building society is lost or destroyed, the society, upon such evidence and subject to such terms and conditions as the directors think fit, and after the loss of such certificate, pass book or receipt has been duly advertised once in the Gazette and once in a newspaper circulating in Swaziland, may issue a certified copy of such certificate, pass book or receipt: Provided that the directors may in their discretion authorise the issue of such a certified copy without requiring the loss to be advertised. (2) Such certified copy shall thereafter for all purposes take the place of the certificate, pass book or receipt so lost or destroyed and be the sole evidence thereof.

Exemptions from stamp and other duty.

75. No stamp duty or other duties whatever shall be payable in respect of the following documents or payments — (a) a building society’s fixed deposit receipts; (b) repayments of an advance made by a building society on security of a mortgage or cession; (c) deposits for credit of a savings account held with a building society; (d) withdrawals from a savings account held with a building society; (e) paid-up share certificates issued by a building society; (f) payments of periodical contributions for subscription shares.

Inspection of documents by public.

76. On payment of the prescribed fees, any person may at the office of the Registrar, inspect the documents relating to any building society which are required to be lodged with the Registrar in terms of this Act or obtain from the Registrar a certificate of the registration of any such society or a copy or extract of any such document kept by him.

Default in rendering accounts and furnishing information.

77. (1) Any society or any association of persons referred to in section 11 which fails to — (a) render to the Registrar within the period fixed by or under this Act any account or statement or other document required by this Act to be rendered by it to him; or (b) amend or complete any document referred to in paragraph (a) when required by the Registrar to do so; or (c) on demand by the Registrar, furnish him with any information required by him for the purpose of this Act; or (d) afford the Registrar or any person deputed by him all facilities for the making of any investigation which the Registrar is by this Act authorised to make; shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred emalangeni. (2) No prosecution shall be instituted for any contravention of subsection (1)(a), (b) and (c), unless the Registrar has in writing notified the society or association of the default and required it to comply with the provisions of the said subsection within a specified time not being less than two weeks after the despatch by the Registrar of such notification, and it has failed within the time so specified to comply therewith. (3) Any society or any association of persons referred to in section 11 which contravenes subsection (1)(a) shall, in addition to any other penalty which may be imposed, be liable to pay a civil penalty of twenty emalangeni for every day during which the contravention continues, and the Registrar may, by action in any Court of competent jurisdiction, recover from it, such civil penalty or portion thereof as he, in his discretion, considers the circumstances justify him in claiming. (4) All penalties recovered under subsection (3) shall be paid into the Consolidated Fund.

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Acceptance of benefits prohibited.

78. (1) No officer or auditor of a building society shall receive any benefit whatever for or in connection with any advance or loan made by such society. (2) No person shall offer or give to any officer or auditor of a building society any benefit whatever for or in connection with any advance or loan made by such society. (3) No officer or auditor of a building society shall purchase or have any direct or indirect pecuniary interest in the purchase of any property owned by or mortgaged to the society and sold by or at the instance of the society, unless the property is purchased at a public sale duly advertised or unless the sale is approved by the Registrar. (4) Any person who contravenes subsection (1), (2) or (3) shall be guilty of an offence and liable on conviction to fine not exceeding two hundred emalangeni or to imprisonment for a term not exceeding six months or both, and the Court before which any such person is convicted may, in addition, order such convicted person to pay the society the amount or value of the benefit received, and any such order may be enforced as if it were an order of the Court in civil proceedings.

False statements.

79. Any person who makes any false statement or orders or allows any false statement to be made in any document which is required by this Act to be sent to the Registrar or which such person expects will be published, knowing such statement to be false, or by addition, alteration, erasure or omission, falsifies any such document, knowing that the addition, alteration, erasure or omission will cause a falsification of the document , shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred emalangeni, or to imprisonment for a period not exceeding six months or both.

Default in complying with financial provisions.

80. (1) If a building society at any time fails to comply with section 41, 42 or 73(b) it shall notify the Registrar in writing of the fact within a period of thirty days of the end of the calendar month during which the failure first occurred. (Amended A.16/1992.) (2) If the Registrar is satisfied that such failure has taken place, he may, unless it is proved to his satisfaction that the failure took place as a result of circumstances beyond the control of the directors of the society, impose upon it a penalty not exceeding one-tenth of one per cent of the aggregate of the deficiencies or excesses that existed on every day that it was in default. (3) The Registrar shall direct the society to take such steps as will, within a period fixed by him, correct the deficiency or excess as the case may be, and may from time to time, for good cause shown, extend the period fixed by him. (4) If the Registrar is satisfied that any society after receiving any such directions from him has failed to correct the deficiency or excess, as the case may be, within the period fixed by him, as extended from time to time, he may impose upon it a penalty of one-tenth of one per cent of the aggregate of the deficiencies or excesses that existed on every day after the expiry or that period as so extended. (5) The society shall notify the Registrar as soon as a deficiency or excess has been corrected, and shall, within a period of forty days after the deficiency or excess has been corrected, submit to him statements certified by its auditor in support of the facts. (6) Any penalty payable under subsection (2) or (4) may be recovered by the Registrar by action in a competent Court, from the society or from one or more of the directors in such shares as he may fix and upon recovery thereof, it shall be paid into the Consolidated Fund: Provided that the Registrar shall not recover from any director any portion of such penalty if he is satisfied that the failure by reason of which the penalty was imposed did not take place with the permission or connivance of that director and that such director took all steps which he could reasonably have been expected to take to prevent the said failure. (7) A director from whom any amount has been recovered in terms of subsection (6) shall not be entitled to recover the whole or any portion of that amount from the society or any other director. (8) The Registrar may at any time call upon the board of directors of any building society for such reports or returns, or may make such inspection of the books and accounts of any such society as may be necessary to ascertain

508 whether any such deficiency or excess exists, or to ascertain the amount of any deficiency or excess, the period during which the deficiency or excess has continued and the reasons for the deficiency or excess. (9) Any decision by the Registrar to impose a penalty in terms of this section shall be subject to appeal to the Minister, who shall confirm the Registrar’s decision or give such other decision as in his opinion the Registrar ought to have given.

Evidence.

81. Any document purporting to be certified by the Registrar to be a document deposited at his office under this Act shall, in the absence of proof to the contrary, be deemed to be such document and every document purporting to be a copy of such document similarly certified by him shall be deemed to be a true copy thereof, and shall be received in evidence as if it were the original document, unless some variation between it and the original document is proved.

Penalties.

82. (1) Any building society which contravenes section 19, 22, 23, 25, 26, 28, 30, 33(1), 39, 40, 46(1), 47(1), 48, 49(1), 50, 51 or 80(1) shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand emalangeni. (Amended A.16/1992.) (2) Any building society which contravenes section 29 or 43 shall be guilty of an offence, and liable on conviction to a fine not exceeding two hundred emalangeni. (3) Any officer of a society which contravenes this Act who is knowingly a party to such contravention shall be guilty of an offence and liable on conviction to the same criminal penalties as the society would be in respect of such contravention.

Regulations.

83. The Minister may by notice in the Gazette make regulations prescribing all matters which by this Act are required to be prescribed or which are necessary or convenient for giving effect to or carrying out this Act.

FIRST SCHEDULE (Section 20) (Replaced in its entirety by A.7/1980; Repealed A.16/1992.)

SECOND SCHEDULE (Repealed A.16/1992.)

THE COMPUTATION OF RISK ASSETS AND THE PRESCRIPTION OF THE CAPITAL REQUIREMENT RATIO NOTICE, 1993 (Under Section 41(1bis))

Date of commencement: 30th June, 1993.

Citation.

1. This notice may be cited as the Computation of Risk Assets and Prescription of the Capital Ratio Requirement Notice, 1993 and shall come into force on 30th June, 1993.

2. For the purpose of computing that a Building Society’s permanent share capital and that portion of its fixed share capital which consists of shares which are not due for redemption within the ensuing three months and the amount of its statutory funds does not at any time amount not less than the percentage capital ratio prescribed in paragraph 3 of this Notice, the following percentage risk weights for on balance sheet and off balance sheet items, as the case may be, shall be used: (a) On Balance Sheet Items

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Assets disclosed on balance sheet shall be accorded the percentage risk weights as set out in Schedule I hereto. (b) Off Balance Sheet Items The percentage risk weights on claims in respect of contingent liabilities not included in the balance sheet shall be calculated as set out in Schedule II hereto.

Percentage Capital Ratio Requirement.

3. The prescribed percentage capital ratio requirement shall not at any time amount to less than 8 percent of the sum of amounts calculated by multiplying all balance sheet and off balance sheet amounts by the risk weights prescribed herein.

SCHEDULE I (Paragraph 2(a)) On Balance Sheet Items (i) Money:

Risk Weight Item 0% Notes and coin 20% Cash at bank and on call (ii) Advances:

Risk Weight Item 50% (a) Secured by mortgages: residential property 100% (b) Secured by mortgages: non-residential property 0% (c) Secured by pledge on shares and fixed deposits 100% (d) Transmission accounts 100% (e) Bridging loans (iii) Investments:

Risk Weight Item 0% (a) Swaziland Government stock 10% (b) Other Government stock 10% (c) Public sector securities (Municipalities, local authorities and other public sector bodies.) 100% (d) Other (iv) Other Assets

Risk Weight Item 100% (e) Sundry debtors 100% (f) Fixed assets 100% (g) Other assets

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SCHEDULE II (Paragraph 2(b)) Off Balance Sheet Items Risk weights on claims in respect of off balance sheet engagements, instruments or transactions, not included in the main balance sheet, shall be calculated by applying credit conversion factors to the nominal principal amount of the different types of off balance sheet engagements; and the resulting credit equivalent amounts shall then be multiplied by the risk weight percentage ratio applicable to that category or instrument of the counterpart as set out in Schedule I hereto. (i) Commitments to extend credit:

Conversion Factor Instrument 50% (a) Mortgage advances 0% (b) Swaziland Government 10% (c) Public sector 100% (d) Other (ii) Other items

Conversion Factor Instrument 50% (e) Underwriting exposures 20% (f) Committed capital expenditure 100% (g) Other contingent liabilities

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THE SHOP HOURS ACT Commentary This is a very short Act regulating the opening and closing of shops during certain hours. The Act basically lists the different kinds of shops, the articles or merchandise they sell as well as the hours during which they may by law operate. It starts of with an interpretations of some of the important words used in the act and thereafter lists the schedule of the legal opening and closing times.

The Shop Hours Act, 1955

Date of commencement: 2nd September, 1955.

An Act to consolidate the law relating to the closing of shops during certain hours.

Short title.

1. This Act may be cited as the Shop Hours Act, No. 75 of 1955.

Definitions.

2. In this Act, unless inconsistent with the context —

“auctioneer” means a person who undertakes or conducts any sale by public auction other than a person who is exempted from taking out an auctioneer’s License under the Trading Licenses Act No. 27 of 1939;

“chemist” means a person in possession of a registration certificate entitling him to practise as a chemist under the Pharmacy Act No. 38 of 1929;

“goods” or “merchandise” includes food, drink, meals and refreshments;

“hawker” means a person who travels with a wagon or other vehicle (other than a hand barrow or hand cart propelled by himself) and who carries goods or merchandise for sale;

“normal hours” means the days and hours on and during which a shop is permitted by section 3 to be open;

“holiday” means and includes a public holiday established under the provisions of the Public Holidays Act No. 71 of 1938;

“Minister” means Minister for Enterprise and Employment;

“open” in relation to a shop means open for the admission of a person for the purpose of selling or supplying to him in such shop any goods or merchandise, or for the purpose of taking an order or for the display of samples to a person;

“pedlar” means a person who travels on foot and without a vehicle (other than a hand barrow or hand cart propelled by himself) or with a pack animal or carrier and who carries goods or merchandise for sale;

“shop” means any building or portion thereof, structure, room, market stall, tent, booth, vehicle or any place which is used for the sale therein, thereon or therefrom of goods or merchandise, or for the display of samples and includes a hairdresser’s or barber’s saloon, but does not include a commercial traveller’s sample room, premises used as a factory, or places licensed to sell intoxicating liquors under any law in force;

“urban area” means a town or municipality established under the Urban Government Act No. 8 of 1969.

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Normal hours during which shops, etc., may be kept open. 3. (1) Except as provided in section 4 no person shall open or keep open any shop, and no person shall in or from any shop sell or supply any goods or merchandise, or take any order, or display any samples, and no auctioneer, hawker or pedlar shall carry on his business — (a) on any Sunday or holiday; (b) earlier than seven o’clock in the morning; (c) later than one o’clock in the afternoon on any Saturday, which day shall be deemed to be an early closing day; (d) later than five o’clock in the evening on any Monday, Tuesday, Wednesday, Thursday or Friday: Provided that paragraphs (b), (c) and (d) of this sub-section shall not apply to any shop outside any urban area. (2) Notwithstanding anything contained in sub-section (1) the Minister for Commerce, Industry and Mines may by notice in the Gazette fix in any area a weekly early closing day on a day other than Saturday, in which case the provisions of this Act applying to Saturday shall be read as applying to such other appointed day.

Certain shops which may be kept open outside normal hours. 4. (1) Outside the normal hours the following shops may be open for the sale of such goods or merchandise on such days and during such hours as are herein specified, namely —

Hours outside Shops Articles or Merchandise Days normal Hours

Auctioneers(a) Any goods, merchandise, livestock Saturdays. 1 p.m. to 6 p.m. or fixed property. Bakers...... Bread, cakes, pastries, biscuits, Weekdays except 6 a.m. to 7 am. sweets and confectionery. holidays. Chemists ...... Medical and surgical require-ments Daily any day. All hours. essential for the immediate treatment of the sick. Dairies...... Fresh milk, fresh cream and butter. Weekdays except 6 a.m. to 7 a.m. holidays. and 5 p.m. to 7 p.m. General Dealers or Grocers whose Foodstuffs, non-alcoholic drinks, Such days as the Such hours as premises are situated inside an urban tobacco and matches. appropriate licensing appropriate li- area authority, under the censing auth- law relating to ority, under the trading Licenses law relating to may, on application, trading Licenses, grant. may, on application, grant. General Dealers, whose premises are (i) Petrol and oils and requisites (i) Daily. (i) All hours. situated outside an urban area (a) for vehicles to enable such to proceed on journey only; medical requisites. (ii) Foodstuffs, non-alcoholic (ii) Holidays except (ii) All hours. drinks, tobacco and matches. Christmas Day and Good Friday. (iii) Foodstuffs, non-alcoholic (iii) Sundays, (iii) 7 a.m. to 5

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drinks, tobacco and Christmas Day, p.m. matches. Good Friday. Garages...... Petrol and oils and requisites for Daily. All hours. motor vehicles to enable such to continue journeys only. Refreshment Shops comprising Tea- Meals or refreshments to be Daily except Sun-days 6a.m. to 7a.m. and rooms, Restau-rants and Eating- consumed on the premises; fresh and holidays 5 p.m. to 11.30 houses. fruit and sweets, bread, tobacco Sundays and holi- p.m. 8 a.m. to 9 and matches. days. p.m.

(Amended P.55/1962; A.8/1970.) (a) As inserted by 34 of 1956. (2) Nothing in this Act shall apply — (a) to any bazaar or sale of work for a charitable or other purpose from which no private profit is derived, nor to hawking or peddling of newspapers, nor to the business of an undertaker nor to the sale by a bona fide farmer or market gardener on any land occupied by him for farming purposes of any produce raised by him on that land nor to the hawking or peddling of such produce by such persons; (b) to the sale before midnight of programmes, catalogues or refreshments at any theatre, concert hall or other place of amusement during any performance; (c) to the sale of newspapers; (d) to any shop situate in a market duly established by a local authority at any place within its urban area. (Amended A.8/1970.)

Trading on certain Sundays and holidays. 5. Notwithstanding anything in this Act — (a) in the event of any Sunday immediately preceding a holiday, or in the event of one holiday immediately succeeding another, it shall be lawful for bakers and butchers to keep open their shops and to sell thereat and deliver therefrom bread, meat and fish until ten o’clock in the morning on the second of the two consecutive days; (b) no shop shall be required to observe the early closing day immediately preceding Christmas and New Year.

Penalties.

6. Any person who contravenes section 3 or 4 shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred rand or in default of payment thereof to imprisonment for a period not exceeding three months, or to both such fine and such imprisonment. (Amended A.8/1970.)

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THE GENEVA GENERAL AGREEMENT ON TARIFFS AND TRADE ACT Commentary

This is an Act to approve of the General Agreement on tariffs and trade that was concluded at Geneva on the 30th October 1947. The agreement was concluded by the Governments of a number of countries in terms of which certain privileges accrue in relation to transactions between acceding Governments.

The Minister for Enterprise and Employment for example, may withhold or withdraw any concessions which the Swazi Government has in terms of the agreement undertaken to grant if such party does not accept this agreement.

According to the Act certain privileges may be granted in respect of goods imported from Swaziland into the territory of any Government that acceded to the Act as well as privileges on customs tariffs on the importation of goods from those Governments into Swaziland. This is basically all that this Act is about.

The Geneva General Agreement on Tariffs and Trade Act, 1948

Date of commencement: 14th December, 1948

An Act to approve of the General Agreement on tariffs and trade concluded at Geneva on the thirtieth day of October, 1947; to make provision for the carrying out of such agreement, and for matters incidental thereto.

Short title.

1. This Act may be cited as the Geneva General Agreement on Tariffs and Trade Act, 1948.

Interpretation.

2. In this Act unless the context otherwise requires — (a) “Agreement” means the General Agreement referred to in section 3; “Minister” means the Minister for Enterprise and Employment. (b) Any reference to which a meaning has been assigned in the Customs and Excise Act, No. 21 of 1971, has the same meaning herein.

Approval of the general agreement on tariffs and trade.

3. The general agreement on tariffs and trade concluded at Geneva on the thirtieth day of October, 1947, by the Governments of the Commonwealth of Australia, the Kingdom of Belgium, the United States of Brazil, Burma, Canada, Ceylon, the Republic of Chile, the Republic of China, the Republic of Cuba, the Czechoslovak Republic, the French Republic, India, Lebanon, the Grand Duchy of Luxemburg, the Kingdom of the Netherlands, New Zealand, the Kingdom of Norway, Pakistan, Zimbabwe, Syria, the United Kingdom of Great Britain and Northern Ireland, the Republic of South Africa and the United States of America, is hereby approved.

515

Date from which agreement shall be applied.

4. The agreement shall, in relation to the territories the Governments of which are referred to in section 3, be applied, either provisionally or definitively as the Minister may determine by notice in the Gazette, with effect from a date specified in such notice.

Withholding or withdrawal of concessions in relation to countries not accepting or withdrawing from agreement.

5. The Minister may by notice in the Gazette withhold or withdraw, as the case may be, any concessions, including concessions in customs tariff rates, which the Government of the Kingdom of Swaziland has in terms of the agreement undertaken to grant or granted to any party to the agreement if such party does not accept the agreement or, as the case may be, withdraws from the agreement after having accepted or acceded to it.

Accession of new parties to the agreement.

6. (1) The agreement shall, in relation to any territory the Government of which has, in terms of the agreement, acceded thereto, be applied with effect from a date to be fixed by the Minister by notice in the Gazette. (2) The Minister may, by any notice referred to in subsection (1) or by a later notice, grant, in consideration of equivalent privileges in respect of goods imported from Swaziland into the territory of any acceding Government, concessions in customs tariff rates in respect of specified goods produced or manufactured in the territory of that Government on their importation into Swaziland.

Withdrawal or modification of concessions in accordance with the agreement.

7. The Minister may by notice in the Gazette and subject to the terms of the agreement and with effect from a date specified in the notice withdraw, in whole or in part, any concession, including a concession in customs tariff rates, granted to any party to the agreement or, in consideration of equivalent privileges in respect of goods imported from Swaziland into the territory of any party to the agreement, grant further concessions in customs tariff rates in respect of specified goods produced or manufactured in the territory of that party on their importation into Swaziland.

Application of customs tariff in relation to territories the Governments of which are parties to the agreement.

8. (1) If the rate of duty specified in the relevant Schedules to the Customs and Excise Act, No. 21 of 1971 is, in respect of any goods, in excess of the rate of duty specified in respect of those goods in Schedule XVIII to the agreement, the rate specified in such Schedule to the agreement shall, in the application of the Customs and Excise Act to goods which were produced or manufactured in any territory in relation to which the agreement is being applied and which are imported into Swaziland, but subject to the provisions of any notice issued under sections 5 or section 7, apply instead of the rate of duty specified in the relevant Schedules to the Customs and Excise Act. (2) Any concession in customs tariff rates granted in terms of section 6(2) or section 7, shall for the purposes of subsection (1) hereof be deemed to be incorporated in Schedule XVIII to the agreement.

Application in relation to certain territories of custom tariff of rates applied in relation to territories whose Governments are parties to the agreement.

9. (1) The Minister may, notwithstanding anything contained in this Act or the Customs and Excise Act, No. 21 of 1971, by notice in the Gazette and with effect from a date specified in the notice apply, in respect of specified goods produced or manufactured in and imported from any territory between whose Government and the Government of the Republic of South Africa there is in existence an agreement concluded or deemed to have been concluded under the Customs and Excise Act, or in terms of which most-favoured nation treatment in regard to customs tariff rates is accorded in respect of goods produced or manufactured in such territory, the rates of duty applied in terms of section 8 of this Act in respect of such goods produced or manufactured in any territory in relation to which the agreement referred to in section 3 of this Act is being applied. (2) The Minister may in like manner amend or withdraw any notice issued in terms of subsection (1).

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Application in relation to certain areas of Germany of customs tariff rates applied in relation to territories whose Governments are parties to the agreement.

10. (1) If the Government of the Republic of South Africa has concluded an agreement with any Government which is a party to the agreement referred to in section 3, whereby, in consideration of equivalent privileges in respect of goods imported from the Republic of South Africa into any specified area of Germany, the Government of the Republic of South Africa has undertaken to accord in respect of goods produced or manufactured in that specified area of Germany, the treatment provided for in the most-favoured nation provisions of the agreement referred to in section 3, the Minister may, by notice in the Gazette and with effect from a date specified in the notice, apply in respect of such goods or their importation into Swaziland the rates of duty applied in terms of section 8 of this Act in respect of goods produced or manufactured in any territory in relation to which the agreement referred to in section 3 is being applied. (2) The Minister may in like manner amend or withdraw any notice issued in terms of subsection(1).

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THE REGISTRATION OF BUSINESSES ACT Commentary This Act was promulgated to provide for registration of businesses other than associations and companies registered in terms of the Companies Act 1912. Section 2 of the act interprets ‘business’ as any business carried on in Swaziland by one or more persons if a License is required by the trading Licenses order of 1975

The Act stipulates that every person applying for a License has to make an affidavit or solemn declaration in writing stating the name of the business, its nature, full address of its premises in Swaziland (unless it’s a pedlar or hawker), the full names and addresses of all members and the date when the business came into existence.

According to section 10 upon the dissolution of the partnership every member is required to transmit to the licensing officer within fourteen days of such dissolution written notice of such dissolution.

Section 12 of the Act states that every agreement to transfer or sell any business with a view to transfer or abandonment of any business, any stock in trade or assets held for purposes of such business shall be void as against creditors of the business unless all the applicable provisions of the Act have been complied with. Section 15 lays down the penalties attaching to any contravention of this Act.

The Registration of Businesses Act, 1933

Date of commencement: 21st July, 1933.

An Act to provide for the registration of businesses other than registered companies and certain other associations.

PART I

GENERAL

Short title.

1. This Act may be cited as the Registration of Businesses Act, No. 42 of 1933.

Interpretation.

2. In this Act, unless inconsistent with the context —

“business” means any business carried on in Swaziland by one or more persons (whether in partnership or not) if a License is required therefor by the Trading Licenses Act, No. 27 of 1939 or any amendment thereof, but the term “business” shall not include a business carried on by — (a) a company, or foreign company, as defined by the Companies Act, No. 7 of 1912; (b) a company incorporated by letters patent, Royal Charter, or Act of Parliament of the United Kingdom; or (c) a society registered under the Co-operative Societies Act, No. 28 of 1964;

“business name” or “business style” shall mean the name or style under which any business is carried on in Swaziland;

“License” shall mean a License, under the Trading Licenses Act, No. 27 of 1939 to carry on a business;

“License officer” shall mean any public officer charged with the duty of issuing Licenses; 518

“Minister” means Minister for Enterprise and Employment;

“prescribed” shall mean prescribed by this Act or by regulation;

“registrar of companies” shall mean the officer carrying out the duties of such registrar under the Companies Act, No. 7 of 1912.

PART II

CONDITIONS PRECEDENT TO GRANT, RENEWAL, OR TRANSFER OF TRADING LICENSES TO FIRMS

Affidavit by applicant.

3. (1) From and after the commencement of this Act every License holder and every person applying for the grant or renewal of a License in respect of a business shall make an affidavit or a solemn declaration in writing stating — (a) the business name; (b) the nature of the business carried or to be carried on, and in the case of a new License, the names of all persons (if any) from whom the business was acquired by the intending License holder; (c) unless the business is a hawker’s or pedlar’s business, the full addresses of all the premises in Swaziland in which the business is intended to be, or, in case of an application for renewal of a License, is being carried on; (d) the full name, the usual residence, and all the occupations, of every person intending to carry on, or in the case of an application for renewal of a License, actually carrying on, the business; (e) if in the case of a new License the intending License holder is a partnership, the date when the partnership came into existence. (2) In the case of a partnership, it shall be sufficient compliance with this section if the affidavit or solemn declaration be made by one partner in Swaziland, or, if there be no partner in Swaziland, it shall be a sufficient compliance with this section if the affidavit or solemn declaration be made by a person producing to the License officer a power of attorney, authenticated as required by law, showing that such person is duly authorised to apply for the grant or renewal of the License on behalf of the partnership. (3) No License shall be issued or renewed by a License officer in respect of any business until the provisions of this section have been complied with. (4) Nothing in this section shall render it necessary to declare the names of an anonymous or a sleeping partner in the case of an anonymous partnership or partnership en commandite.

Change in business.

4. (1) Whenever there is a change in the style, constitution, personnel, or premises of a business registered under this Act, notice of the change shall, within fourteen days after such change takes place, be advertised on behalf of the business in three consecutive ordinary issues of the Gazette and once in each week for three consecutive weeks in a newspaper circulating in every region wherein the business premises were situate before the change, or, in the case of a hawker’s or pedlar’s business, wherein the business was being carried on before the change. (2) Application in writing shall further be made on behalf of the business for endorsement on the License of the particulars of the change, and the License officer shall, if satisfied that the provisions of sub-section (1) have been complied with, and on production of the License, endorse the License accordingly, or issue a new License as the case may require, and make corresponding entries in his register.

Transfer and sale. 5. (1) Whenever any person desires to transfer his business, or to transfer or sell, with the view to the transfer or abandonment of any business, any stock in trade or other assets held or used for the purpose of such business, notice of the proposed transfer or sale shall be advertised by that person before the date on which the transfer or sale is to take effect in three consecutive ordinary issues of the Gazette, and once in each week for three consecutive weeks in a newspaper

519 circulating in every region wherein the business premises are situate, or, in the case of a hawker’s or pedlar’s business, wherever the business is being carried on. (2) The License officer shall, notwithstanding anything in the Trading Licenses Act, No. 27 of 1939 refuse to issue a new License or transfer an existing License in respect of the business unless he is satisfied that sub-section (1) has been complied with. (3) Sub-sections (1) and (2) shall apply in respect of the devolution of a business by testamentary or intestate succession, save that the prescribed notice shall be advertised by the executor of the deceased License holder, or, if there be no executor by any curator bonis lawfully appointed to take charge of the estate of the deceased. (4) No business which has been transferred shall continue to be carried on under a License in the name of the transferor.

PART III REGISTRATION OF BUSINESS Register to be kept by License officer.

6. (1) Every License officer shall, in the prescribed form, keep a register of every business in respect of which a License has been issued, renewed, or transferred in his office. (2) The register shall, in addition to the prescribed particulars, contain all the particulars furnished on behalf of a business to the License officer under this Act. (3) A certified copy of the register shall be transmitted by the License officer to the registrar of companies not later than the thirty-first day of January and thereafter at the end of each succeeding month, if any change in his register has taken place during such month.

Register to be kept by registrar of companies. 7. (1) The registrar of companies shall, in the prescribed form, keep a register of information furnished to him by License officers under section 6, and an alphabetical index of business names and of persons registered under this Act. (2) Particulars of such information and such further information as may from time to time be prescribed, shall be published in the Gazette once every six months by the registrar of companies.

Inspection of registers.

8. (1) The registers kept under sections 6 and 7 may on written application be inspected during the ordinary office hours by any person on payment of a fee of ten cents. (2) Copies of any such register or a portion thereof may also be made during the hours in which it is open for inspection on payment of a fee of ten cents for every hundred words or less copied. (3) The registrar of companies shall, if required, furnish any person a certificate of registration of any business under this Act, or a certified copy of any portion of the register kept by him. (4) A fee of ten cents shall be payable for such certificate of registration and a fee of ten cents for every five hundred words or less copied shall be payable for every such certified copy. (5) All fees payable under this section shall be paid by means of revenue stamps affixed to the document, or in the case of an application for inspection, to the form of application. (6) The License officer or registrar receiving the fee shall duly deface the stamps in manner required by law. (7) Every certified copy issued by the registrar of companies under sub-section (3) shall, if it is duly stamped and purports to be signed and certified by the registrar of companies be prima facie evidence in all courts and places in Swaziland of the facts stated on such copy. (8) Every certificate of registration, so duly stamped, signed and certified, shall be conclusive evidence in all courts and places that all requirements of this Act in respect of registration have been complied with.

PART IV

SPECIAL PROVISIONS AS TO BUSINESS PARTNERSHIPS 520

Legal proceedings.

9. (1) Legal proceedings may be instituted by or against the partnership in the registered business style of the partnership without setting forth the names of the individual partners in the notice of motion, summons, declaration, plea or other like document in the proceedings. (2) Legal proceedings may be instituted against a partnership in a court having jurisdiction in any district wherein the registered business premises of the partnership are situate or wherein any registered partner resides. (3) If a partner whose name forms part of the business style of the partnership retires from the partnership or dies, the remaining partners shall not carry on a partnership under the same style for longer than six weeks after the date of the retirement or death of such partner except with the consent of the retiring partner, or in the case of his death, with the consent of his executor, or failing an executor, a curator bonis lawfully appointed to take charge of the deceased’s estate.

Dissolution of partnership.

10. (1) If a partnership is dissolved or the members thereof cease to carry on business as a partnership, every such member shall transmit to the License officer within fourteen days after the dissolution or cessation (as the case may be) written notice thereof. (2) Whenever a License officer has received a notice transmitted under sub-section (1) that a partnership has been dissolved or has ceased to carry on business as that partnership, he shall make entries upon his register accordingly.

Sequestration of partner or partnership.

11. (1) If the separate estate of a partner or the joint estate of a partnership be sequestrated by order of the court or surrendered under the law for the time being relating to insolvency, the License officer and the registrar of companies shall make entries accordingly in their respective registers and shall further make entries of the fact of any order setting aside a sequestration or of an order of rehabilitation. (2) The registrar of the court which made any such order or accepted the surrender shall, as soon as may be there after, furnish to the License officer and to the registrar of companies such information as will enable them to carry out the provisions of this section.

PART V

MISCELLANEOUS

Certain agreement void.

12. (1) Every agreement entered into after the commencement of this Act for the alienation of a business name from the business to which that name belongs shall be void to all intents and purposes. (2) Every agreement to transfer or sell any business or to transfer or sell, with a view to transfer or abandonment of any business, any stock in trade or other assets held or used for the purpose of such business or to reconstitute any business shall be void as against creditors of the business unless all the provisions of this Act applicable to the business have been complied with.

Name of business.

13. (1) A business may not be registered by a name identical with that by which a business in existence is already registered or so nearly resembling that name as to be calculated to deceive, except where the business in existence is in the course of being dissolved in the prescribed manner: Provided that nothing herein contained shall be construed to prevent a business from being registered by the name it actually bears at the date of the commencement of this Act. (2) A business may not be registered by a name calculated to cause annoyance or offence to any person by a name suggestive of blasphemy or indecency. (3) A business may not, without the consent of the Minister, be registered by a name which includes the words “Royal”, “Crown”, “Empire”, “Government”, or any other word which imports or suggests that it enjoys the patronage of

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Her Brittanic Majesty or of the king of Swaziland; but nothing in this sub-section shall be construed as preventing the registration of a business name which was held at the commencement of this Act. (4) If a business, through inadvertence or otherwise, is registered in conflict with the provisions of this section it shall change its name, and, until it has changed its name, the right to trade under a License shall be suspended, and, during the period of suspension, the business shall be deemed to be unlicensed. (5) Nothing in this section shall be construed as preventing the registration of a business name which consists only of one of the Christian names and the surname of the License holder or of any partner of the License holder who is liable in solidum for the partnership debts.

Verification of statement.

14. (1) Every License officer may require any statement material to the purposes of this Act, if not already verified by the affidavit or solemn declaration of a particular person, to be so verified by that person. (2) No stamp duty shall be chargeable upon any affidavit or solemn declaration specifically required by this Act or any regulation, notwithstanding anything contained in the Stamp Duties Act, No. 37 of 1970. (3) Any person who makes a false statement in any affidavit or solemn declaration made under this Act or a regulation or makes, signs, sends, or delivers any false statement under this Act, knowing the same to be false, shall be guilty of an offence and liable on conviction to the penalties prescribed by law for perjury.

Offences and penalties.

15. Any person who makes default in complying with any requirement of this Act, or contravenes any provision of this Act, shall, if for the default or contravention no penalty is specially provided, be liable on conviction — (a) in the case of a first offence to a fine not exceeding one hundred emalangeni or in default of payment thereof to imprisonment for a period not exceeding three months; and (b) in the case of a second or subsequent offence to a fine not exceeding two hundred emalangeni or in default of payment thereof, to imprisonment for a period not exceeding six months, or to both such fine and imprisonment, or to such imprisonment without the option of a fine; and, in the case of a continuing offence, to a fine not exceeding ten emalangeni for every day during which the offence continues, or in default of payment thereof to imprisonment for a period not exceeding seven days for every ten emalangeni so ordered to be paid.

Offences by partnership.

16. (1) In the case of an offence against this Act by a partnership, the manager and each partner in Swaziland (other than such a partner as is described in section 3(4)) shall be liable to prosecution and to the penalties provided for the offence, unless he shall prove to the satisfaction of the court that the offence was committed without his knowledge, authority or permission. (2) In the case of an offence against this Act in respect of any business, if every proprietor of the business is outside Swaziland, the manager or agent in Swaziland for the business and every person who carries on the business therein shall be liable to prosecution and to the penalties provided for the offence.

Regulations.

17. (1) The Minister may make, alter, or rescind regulations, not inconsistent with this Act or any other law, prescribing — (a) the fees (other than as are specially fixed by this Act) to be paid to License officers and the registrar of companies in respect of matters to be done by those officers under this Act; (b) the forms of registers to be kept and of certificates of registration and other documents to be given or used for the purposes of this Act, the particulars to be entered in those registers and on those certificates and documents, and the particulars to be from time to time published; (c) the duties of License officers and the registrar of companies under this Act; 522 and generally for the better carrying out of the objects and purposes of this Act. (2) Every such regulation or alteration or rescission thereof shall be of force and effect when published in the Gazette.

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THE COMPANIES ACT Commentary When the Companies Act was incorporated in 1912 it immediately did away with any company, association, syndicate or partnership that had a membership of more than 20 people. According to section 5 of the Act where seven or more persons (for a public company and two or more persons for a private company) associate for any lawful purpose they may by subscribing their names to a Memorandum of Association form an incorporated company with or without limited liability.

This means that a company may either have the liability of its members limited by the memorandum to the amount unpaid on any shares respectively held by them or it may not have any limit on the liability of its members.

Every memorandum of association has to state the following; 1. The name of the company. 2. The place in Swaziland in which the registered office of the company is to be situated. 3. The objects of the company.

In the case of a company limited by shares it must be stated that the liability of the members is limited as well as the amount of share capital with which the company proposes to be registered, and its division into shares of a fixed amount.

A company may by special resolution alter its objects in order to enable it to carry on its business more economically or efficiently, to attain its main purpose by new or improved means, to enlarge or change the local area of its operations, to carry on some other object which may conveniently be combined with the business of the company or to restrict or abandon any objects specified in the memorandum.

It must be noted however that the alteration shall not take effect until it has been confirmed on petition by the court, which has to satisfy itself of the following: a) That sufficient notice has been given to every mortgagee and to every holder of debentures of the company or any person whose interest might be affected. b) That every debtor’s consent has been obtained or his claim has been discharged or secured.

Articles of association which prescribe the regulations of the company are lodged with the memorandum. The articles have to be divided into paragraphs numbered consecutively and be signed by each subscriber of the memorandum in the presence of at least one witness. The articles can only be altered by special resolution.

For registration of the memorandum and articles one has to lodge the original and a copy or copies with the registrar of companies, after payment of a prescribed fee (the new schedule of fees is attached hereto). If the registrar finds them to be in accordance with this Act he shall so register them and return to the owner the original and a copy. Upon registration the registrar will certify that the company is incorporated. A certificate of incorporation is then issued which is conclusive evidence that the provisions of this Act have been complied with. Where the Minister is satisfied that an association about to be formed as a limited company is to be formed for promoting commerce, religion, charity, or any other useful object and intends to apply its profits in promoting its

524 objects, the Minister may issue a License directing that the association be registered with limited liability, without adding the word ‘liability’ to its name.

Every registered company and every foreign company carrying on business in Swaziland has to take out an annual company License before the 31st July.

Shares or other interest of any member in a company shall be transferable in a manner provided by the articles of the company and each share shall be distinguished by an appropriate number. A share certificate, signed by two directors or one if there is only one and a secretary, shall be evidence of the title of the member to the shares or stock.

Every company is compelled to keep a register of its members and to enter the information such as the members’ names and addresses, in the case of a company having a share capital, the share held by each member and the amount paid or agreed to be considered as paid on the shares of each member; the date at which each person was entered in the register as a member as well as the date at which any person ceased to be a member. The register has to be kept at the company’s registered office. Failure to keep such a register is an offence.

A limited company authorised by its articles may issue a warrant stating that the bearer is entitled to the shares or stock specified therein and may provide coupons or otherwise for the payment of the future dividends on the shares or stock included in the warrant. The share warrant entitles the bearer to the shares or stock included therein and such shares or stock may be transferred by delivery of the share warrant.

A company may make arrangements on the issue of shares for a difference between classes of shareholders in the amounts and times of payments of calls on their shares. It may also accept from any member the whole or part of the amount still unpaid on any shares held by him. In addition the company may pay dividend in proportion to the amount paid up on each share where a larger amount is paid upon some shares than on others.

A limited company may increase its share capital, consolidate and divide all or any of its share capital into shares of larger amounts, convert all or any of its paid up shares into stock, and reconvert such stock into paid up shares of any denomination. The company may also sub-divide its shares into shares of smaller amounts than is fixed by the memorandum and it may cancel shares which at the date of passing of the resolution in that regard, have not been taken or agreed to be taken by any person. The Registrar has to be notified of any increase in share capital within 15 days of the passing of a special resolution in that regard.

According to section 44 a company may, subject to confirmation by court, by special resolution reduce its share capital. In particular it may extinguish or reduce liability on any of its shares in respect of share capital not paid up, or cancel any paid up share capital which is lost or un-represented by available assets or it may pay off any paid up capital which is in access of the wants of the company.

Where a company has passed and confirmed a resolution for reducing share capital it may apply to court by petition for an order confirming the reduction. The court, if satisfied with respect to every creditor entitled to object to the reduction that either his consent to the reduction has been obtained or his debt or claim has been discharged or secured may make an order confirming the reduction.

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The court order and minute reflecting such reduction has to be delivered to the registrar who shall register them. The minute, when registered is then deemed to be substituted for the corresponding part of the memorandum and has to be embodied in every copy of the memorandum issued after its registration.

Section 61 of the Act deals with the different kinds of meetings that may be held by a company. It holds that every company shall hold general meetings to be known and described in the notices calling such meetings as Annual General meetings of such company. The 1st meeting has to be held within a period of 18 months after the date of incorporation of the company and thereafter within not more than 6 months after the end of every financial year, and lastly within not more than 15 months after the date of the last preceding such meeting of the company.

Within a period of not less than one year and not more than 3 months from the date at which the company is entitled to commence business a general meeting of the members of the company shall be held, known as the Statutory meeting.

The directors of the company may on requisition of not less than one tenth of the holders of issued share capital proceed t convene an Extraordinary General meeting of the company.

When a resolution has been passed by a majority of not less than two- thirds of members entitled to vote who are present in person or by proxy at a general meeting, such resolution shall be an extraordinary resolution a resolution shall be a special resolution when it has been passed in a manner required for the passing of an extraordinary meeting at a subsequent general meeting.

A copy of every special or extraordinary resolution has to be transmitted to the Registrar within 15 days from confirmation of the special resolution or passing of the extraordinary resolution.

Section 69a of the Companies Act specifically says that every company other than a private company shall have at least two directors and every private company shall have at least one director. It is however interesting to note that section 5 of the Act states that where the company to be formed is a private company, any two or more persons may, by subscribing their names form an incorporated company with or without limited liability. Whatever the case, every company has to keep at its registered office a list of the directors of the company and a copy thereof should be sent to the Registrar.

Section 83 of the Act deals with allotment. It states the conditions that are to be met before any allotment of any share capital can be made. Firstly, the amount fixed by the memorandum as the minimum subscription should not be less than 75% of the whole amount of share capital. Secondly, if no amount is fixed, then the whole amount of the share capital so offered has been subscribed and the amount offered for subscription has been paid to and received by the company.

Any allotment made in contravention of the Act shall be voidable at the instance of the applicant within one month thereafter, and any director knowingly a party to such contravention shall be guilty of an offence.

Section 85 stipulates that a company cannot commence business unless: - shares held subject to the payment of the whole amount thereof in cash have been allotted to an amount not less than the minimum subscription,

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- every director has paid to the company on each of the shares taken by him and for which he is liable to pay by cash, - an affidavit or solemn declaration has been lodged with the Registrar that the above conditions have been complied with, - and in the case of a company which does not issue a prospectus there has been lodged with the Registrar a statement in lieu of prospectus. The Registrar shall on lodging of this affidavit or declaration certify that the company is entitled to commence business.

Every company has to appoint auditors at each annual general meeting the auditors have a right to access the books and accounts and vouchers of the company at all times.

Part IV of the Act deals with winding up of the company. It says that a company may be wound up either by court, voluntarily or subject to supervision of the court. In the event of a company being wound up, every present and past member shall be liable to contribute to the assets of the company to an amount sufficient for payment of its debts, liabilities and the costs, charges and expenses of the winding up.

However a past member shall not be liable to contribute if he has ceased to be a member for a period of one year or upwards before the commencement of the winding up. Also, a past member shall not be liable to contribute in respect of any debt or liability of the company contracted after he has ceased to be a member.

In instances where the court has made a winding-up order a statement of the affairs of the company has to be submitted to the Master of the High Court, who shall as soon as practicable after receipt of this statement submit a preliminary report to the court relating to the amount of capital issued, subscribed, and paid up, and the estimated amount of assets and liabilities; and if the company has failed, the causes of the failure and; whether in his opinion further enquiry is desirable relating to the failure or conduct of the business.

For purposes of conducting the winding up proceedings, the court may appoint a liquidator who shall receive the prescribed fees as remuneration. The liquidator shall take into his custody or control all the property, movable and immovable to which the company is entitled. When the liquidator has realised all the property of the company and has distributed a final dividend if any to the creditors, the Master may, upon application of the liquidator cause a report on his account to be prepared. Thereafter if all is to the satisfaction of the court, the liquidator may be released from his duties as such. According to section 196 when the Registrar has reasonable cause to believe that a company is not carrying on business he shall after taking the appropriate steps, strike the name of the company off the registry.

Bearing in mind that this Act was passed in 1912, almost a century ago, it is now in dire need of review. The good news is that there is a Companies Bill on its way although it has not yet received approval from senate.

The Companies Act, 1912

Date of commencement: 19th February, 1912.

Arrangement of sections 1. Short title. 2. Contents of chapter (not reprinted). 527

3. Interpretation of terms.

PART I

CONSTITUTION AND INCORPORATION

PROHIBITION OF LARGE PARTNERSHIPS 4. Prohibition of trading association or partnerships exceeding twenty members.

MEMORANDUM OF ASSOCIATION 5. Mode of forming company. 6. Memorandum of association of company limited by shares. 7. Memorandum of unlimited company. 8. Signature of memorandum of association. 9. Restriction on alteration of memorandum of association. 10. Name of company and change of name. 11. Alteration of objects of company.

ARTICLES OF ASSOCIATION 12. Registration of articles of association. 13. Application of Table “A”. 14. Form and signature of articles. 15. Alteration of articles by special resolution.

GENERAL PROVISIONS 16. Effect of memorandum and articles. 17. Registration of memorandum and articles. 18. Effect of registration. 19. Conclusiveness of certificate of incorporation. 20. Copies of memorandum and articles to be given to members.

ASSOCIATIONS NOT FOR PROFIT 21. Special provisions as to associations formed for purpose not of gain. 21bis. Company License.

PART II

DISTRIBUTION AND REDUCTION OF SHARE CAPITAL, REGISTRATION OF UNLIMITED COMPANY AS LIMITED, AND UNLIMITED LIABILITY OF DIRECTORS

DISTRIBUTION OF SHARE CAPITAL 22. Nature of shares. 23. Certificate of shares or stock. 24. Definition of “member”. 25. Register of members. 26. Annual list of members and summary. 27. Trusts not to be entered on register. 28. Registration of transfer at request of transferor.

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29. Transfer by legal representative. 30. Inspection of register of members. 31. Power to close register. 32. Remedy for improper entry or omission of entry in register. 33. Register to be evidence. 34. Branch registers in foreign countries. 35. Regulations as to branch register. 36. Issue and effect of share warrants to bearer. 37. Forgery, personation, unlawfully engraving plates, etc. 38. Power of company to arrange for different amounts being paid on shares. 39. Power of limited company to alter its share capital. 40. Notice to Registrar of consolidation of capital, conversion of shares into stock etc. 41. Effect of conversion of shares into stock. 42. Notice of increase of share capital or of members. 43. Reorganisation of share capital.

REDUCTION OF SHARE CAPITAL 44. Special resolution for reduction of capital. 45. Application to Court for confirmation order. 46. Addition to name of company of “and reduced”. 47. Objections by creditors, and settlement of list of objecting creditors. 48. Order confirming reduction. 49. Registration of order and minute of reduction. 50. Minute to form part of memorandum. 51. Liability of members in respect of reduced shares. 52. Penalty for concealment of name of creditor. 53. Publication of reasons for reduction.

REGISTRATION OF UNLIMITED COMPANY AS LIMITED 54. Registration of unlimited company as limited. 55. Power of unlimited company to provide for reserve share capital on registration.

RESERVE LIABILITY OF LIMITED COMPANY 56. Reserve liability of limited company.

UNLIMITED LIABILITY OF DIRECTORS 57. Limited company may have directors with unlimited liability. 58. Special resolution of limited company making liability of directors unlimited.

PART III

MANAGEMENT AND ADMINISTRATION

OFFICE AND NAME 59. Registered office of company. 60. Publication of name by limited company.

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MEETINGS AND PROCEEDINGS 61. Annual general meeting. 62. First statutory meeting of company. 63. Extraordinary general meeting. 64. Provisions as to meetings and votes. 65. Notices to foreign shareholders in case of matters requiring the sanction of an extraordinary or special resolution. 66. Representation of companies at meetings of other companies of which they are members. 67. Extraordinary and special resolution. 68. Registration of copies of special and extraordinary resolutions. 69. Minutes of proceedings of meetings and directors.

APPOINTMENT, QUALIFICATION, ETC. OF DIRECTORS

69A. Number of directors and liability of subscribers. 70. Restrictions of appointment or advertisement of director. 71. Qualification of director. 72. Validity of acts of director. 73. List of directors to be sent to Registrar.

CONTRACTS, ETC. 74. Form of contracts. 75. Promissory notes and bills of exchange. 76. Execution of deeds abroad. 77. Power to companies to have an official seal for use in foreign countries.

PROSPECTUS 78. Lodging of prospectus with Registrar. 79. Specific requirements as to particulars of prospectus. 80. Obligations of companies where no prospectus issued. 81. Restriction on alteration of terms mentioned in prospectus or statement in lieu of prospectus. 82. Liability for statements in prospectus.

ALLOTMENT 83. Restrictions as to allotment. 84. Effect of irregular allotment. 85. Restrictions on commencement of business. 86. Return as to allotments.

COMMISSIONS AND DISCOUNTS 87. Power to pay certain commissions and prohibition of payment of all other commissions, discounts, etc. 88. Statement in balance-sheet as to commissions and discount.

PAYMENT OF INTEREST OUT OF CAPITAL 89. Power of company to pay interest out of capital in certain cases.

CERTIFICATE OF SHARES, ETC.

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90. Limitation of time for issue of certificates.

REGISTER OF MORTGAGES 91. Company’s register of mortgages. 92. Right to inspect company’s register of mortgages. 93. Right of debenture holders to inspect the register of debenture holders and to have copies of trust deeds.

DEBENTURES 94. Power to re-issue redeemed debentures in certain cases. 95. Specific performance of contract to subscribe for debentures.

INSPECTION AND AUDIT

96. Investigation of affairs of company by inspectors appointed by Minister. 97. Power of company to appoint inspectors. 98. Report of inspectors to be evidence. 99. Appointment and remuneration of auditors. 100. Powers and duties of auditors. 101. Rights of preference shareholders and debenture holders as to receipt and inspection of reports.

CARRYING ON BUSINESS WITH LESS THAN THE LEGAL MINIMUM NUMBER OF MEMBERS 102. Prohibition of carrying on business with fewer than seven or, in the case of a private company, two members.

ARBITRATIONS 103. Arbitration between companies and others.

POWER TO COMPROMISE 104. Power to compromise with creditors and members.

PRIVATE COMPANY BECOMING A PUBLIC COMPANY 105. Mode in which private company may become a public company.

PART IV

WINDING-UP

PRELIMINARY 106. Modes of winding-up.

CONTRIBUTORIES 107. Liability as contributories of present and past members. 108. Meaning of “contributory”. 109. Nature of liability of contributory. 110. Contributories in case of death. 111. Contributories in case of insolvency.

WINDING-UP BY COURT 112. Circumstances in which company may be wound up by Court. 113. Company when deemed unable to pay its debts.

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114. Application for winding-up a company. 115. Effects of winding-up order. 116. Commencement of winding-up by Court. 117. Court may stay or restrain proceedings against the company. 118. Powers of Court on hearing petition. 119. Actions stayed on winding-up order. 120. Copy of order to be transmitted to Registrar and other officers. 121. Power of Court to stay winding-up. 122. Court may have regard to wishes of creditors or contributories.

MASTER OF THE COURT 123. Statement of company’s affairs to Master. 124. Report by Master.

LIQUIDATORS 125. Appointment, remuneration and title of liquidators. 126. Custody of company’s property. 127. Powers of liquidator. 128. Meetings of creditors and contributories in winding-up. 129. Liquidator to give information to Master. 130. Payments of liquidator in winding-up into bank. 131. Audit of liquidator’s accounts in winding-up. 132. Books to be kept by liquidator in winding-up. 133. Obligations of liquidators as to framing liquidation account, etc. 134. Procedure on failure of liquidator to lodge liquidation account. 135. Release of liquidators. 136. Exercise and control of liquidator’s powers. 137. Control of Master over liquidators.

COMMITTEE OF INSPECTION — SPECIAL MANAGER 138. Committee of inspection. 139. Power to appoint special manager.

ORDINARY POWERS OF COURT 140. Settlement of list of contributories and application of assets. 141. Power to require delivery of property. 142. Power to order payment of debts by contributory. 143. Power of Court to make calls. 144. Power of Court to order payment into bank. 145. Order on contributory conclusive evidence. 146. Power to exclude creditors not proving in time. 147. Court to adjust rights of contributories. 148. Power to order costs. 149. Dissolution of company.

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150. Delegation of liquidator of certain powers of Court.

EXTRAORDINARY POWERS OF COURT 151. Power to summon persons before it, suspected of having property of company. 152. Power to order public examination of promoters, directors, etc. 153. Power to arrest absconding contributory. 154. Powers of Court cumulative. 155. Appeals from order.

VOLUNTARY WINDING-UP OF COMPANY 156. Circumstances under which company may be wound up voluntarily. 157. Commencement of voluntary winding-up. 158. Effect of voluntary winding-up on status of company. 159. Notice of resolution to wind up voluntarily. 160. Consequences of voluntarily winding-up. 161. Notice by liquidator of his appointment. 162. Rights of creditors in a voluntary winding-up. 163. Power to fill vacancy in office of liquidator. 164. Delegation of authority to appoint liquidators. 165. Arrangements: when binding on creditors. 166. Power of liquidators to accept shares, etc. as a consideration for sale of property of company. 167. Power to apply to Court. 168. Power of liquidator to call general meeting. 169. Final meeting and dissolution. 170. Saving of rights of creditors and contributories. 171. Power of Court to adopt proceedings of voluntary winding-up.

WINDING-UP SUBJECT TO SUPERVISION OF COURT 172. Power to order winding-up subject to supervision. 173. Effect of petition for winding-up subject to supervision. 174. Court may have regard to wishes of creditors and contributories. 175. Power of Court to appoint or remove liquidators. 176. Effect of supervision order.

SUPPLEMENTARY PROVISIONS 177. Costs of winding-up. 178. Avoidance of transfers after commencement of winding-up. 179. Debts of all descriptions to be proved. 180. Application of law relating to insolvency in winding-up of insolvent companies. 181. Preferential payments in winding-up. 182. Voidable and undue preferences. 183. Application of law relating to insolvency. 184. Avoidance of certain attachments, executions, etc. 185. General scheme of liquidation may be sanctioned.

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186. Power of Court to assess damages against delinquent promotors, directors, etc. 187. Penalty for falsification of books, etc. 188. Prosecution of delinquent directors, etc. 189. Meetings to ascertain wishes of creditors or contributories. 190. Books of company to be evidence. 191. Inspection of books. 192. Disposal of books, accounts and documents of company. 193. Power of Court to declare dissolution of company void. 194. Information as to pending liquidations. 195. Special commissioners for taking evidence.

REMOVAL OF DEFUNCT COMPANIES FROM REGISTER 196. Registrar may strike defunct company off register. 197. Orders to be transmitted to Master and registering office.

PART V

FOREIGN COMPANIES 198. Foreign companies.

PART VI

APPLICATION OF PROCLAMATION 199. Restricted application of Act in case of banking and insurance companies. 200. Exemption from Act of co-operative agricultural societies, building societies, friendly societies and trade unions.

PART VII

WINDING-UP OF UNREGISTERED COMPANIES 201. Winding-up of unregistered companies. 202. Contributories in winding-up of unregistered company. 203. Power of Court to stay or restrain proceedings. 204. Actions stayed on winding-up order. 205. Directions as to property in certain cases. 206. Provisions of this Part cumulative.

PART VIII

MISCELLANEOUS PROVISIONS 207. Amalgamation schemes to be submitted to Minister.

207A. Costs in actions by limited companies. 208. Power of Court to grant relief in certain cases. 209. Prescribed fees, forms, and alterations thereof. 210. Penalty for late filing. 211. Power to Minister to make rules. 212. Office for registration of companies. 213. Service of documents. 214. Judicial notice of signature of office. 534

215. Penalties for false statements and false oaths. 216. Penalty for improper use of word “Limited”. 217. Officers liable for defaults by company. 218. Offences and penalties. 219. Imprisonment in default of payment of fines. Schedules.

An Act to make provision for the incorporation, registration and winding-up of companies and other associations.

Short title.

1. This Act may be cited as the Companies Act, 1912.

Contents of chapter.

2. (This section is not reprinted.)

Interpretation.

3. In this Act, unless inconsistent with the context —

“articles” means the articles of association of a company as originally framed, or as altered by special resolution, and shall include, so far as they apply to a company, the Regulations set forth in the Third Schedule to this Act;

“books or papers” and “books and papers” includes accounts, deeds, writings, and other documents;

“company” means a limited or unlimited company which is incorporated and registered under Part I, and shall include every company to which, by Part VI, this Act is expressed to apply;

“Court” means the High Court;

“debenture” includes debenture stock;

“director” includes any person occupying the position of director or alternate director of a company, by whatever name he may be called;

“extraordinary resolution” means a resolution passed at a general meeting of a company in accordance with section 67(1);

“foreign company” means a company or other association of persons which has for its objects the acquisition of gain by the company or association, or by the individual members thereof, and is registered or incorporated in a foreign country under the laws of that country;

“foreign country” means any state, country, colony, or territory, other than Swaziland;

“limited company” means a company having the liability of its members limited by the memorandum of association to the amount (if any) unpaid on the shares respectively held by them.

“Master” shall mean the Master of the High Court or any person lawfully acting in that capacity;

“memorandum” means the memorandum of association of a company, as originally framed or as altered in pursuance of this Act;

“Minister” means the Minister for Enterprise and Employment;

“prescribed fee” means the fee mentioned in the First Schedule to this Act, as the fee payable in respect of any particular matter;

“prescribed form” means a form set forth in the Second Schedule to this Act;

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“private company” means a company which by its articles. (a) restricts the rights to transfer its shares; and (b) limits the number of its members (exclusive of persons who are in the employ of the company) to a number not exceeding fifty; and (c) prohibits any invitation to the public to subscribe for any of its shares or debentures; where two or more persons hold one or more shares in a company jointly they shall be deemed for the purposes of paragraph (b) of this definition to be one member;

“prospectus” means any prospectus, notice, circular, or advertisement inviting the public to subscribe for or purchase any of the shares or debentures of a company, or any direct or indirect invitation to the public to so subscribe or purchase;

“Registrar” means the Registrar of Companies approved under section 212, or any person lawfully acting in that capacity;

“share” means a share in the share capital of a company, and includes stock, except where a distinction between stock and shares is expressed or implied;

“special resolution” means a resolution passed at a general meeting of a company in manner provided by section 67(2);

“Table A” means the table of Regulations set forth in the Third Schedule of this Act;

“unlimited company” means a company which has no limit on the liability of its members.

(Amended P.8/1962.)

PART I

CONSTITUTION AND INCORPORATION

PROHIBITION OF LARGE PARTNERSHIPS

Prohibition of trading associations or partnerships exceeding twenty members.

4. (1) From and after the 19th of February, 1912 no company, association, syndicate or partnership consisting of more than twenty persons shall be formed in Swaziland for the purpose of carrying on any business that has for its object the acquisition of gain by the company, association, syndicate or partnership, or by the individual members thereof, unless it is registered as a company under this Act, or is formed in pursuance of some other law of Swaziland, or of Letters Patent, or Royal Charter. (2) Notwithstanding subsection (1) the Minister may, by notice in the Gazette, grant the exemption of any company, association, syndicate of partnership from the requirement of that subsection where he is satisfied that the principal purpose of the company, association, syndicate or partnership is not the direct acquisition of gain by it or its individual members but the furtherance of their collective interests. (3) The publication of a notice in the Gazette under subsection (2) shall be conclusive evidence that the company, association, syndicate or partnership to which it relates is exempt from the requirements of subsection (1). (Amended P.52/1964.)

MEMORANDUM OF ASSOCIATION

Mode of forming company.

5. Seven or more persons (or, where the company to be formed will be a private company, any two or more persons) associated for any lawful purpose may, by subscribing their names to a memorandum of association and otherwise complying with the requirements of this Act in respect of registration, form an incorporated company with or without limited liability (that is to say), either —

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(1) a company having the liability of its members limited by the memorandum to the amount (if any) unpaid on the shares respectively held by them; or (2) a company not having any limit on the liability of its members.

Memorandum of association of company limited by shares.

6. (1) The memorandum of a limited company shall state — (a) the name of the company with “Limited” as the last word in its name; (b) the place in Swaziland in which the registered office of the company is to be situated; (c) the objects of the company; (d) that the liability of the members is limited; (e) the amount of share capital with which the company proposes to be registered, and the division thereof into shares of a fixed amount. (2) No subscriber of the memorandum of a limited company may take less than one share. (3) Each subscriber of a limited company shall write opposite to his name the number of shares he takes.

Memorandum of unlimited company.

7. (1) The memorandum of an unlimited company shall state — (a) the name of the company; (b) the place in Swaziland in which the registered office of the company is to be situated; (c) the objects of the company. (2) If an unlimited company has a share capital — (a) no subscriber of the memorandum may take less than one share; (b) each subscriber shall write opposite to his name the number of shares he takes.

Signature of memorandum of association.

8. The memorandum shall be signed by each subscriber in the presence of at least one witness who shall attest the signature and shall, in attesting, state his occupation and address.

Restriction on alteration of memorandum of association.

9. A company may not alter the conditions contained in its memorandum except in the cases and in the mode, and to the extent for which express provision is made in this Act.

Name of company and change of name.

10. (1) A company may not be registered by a name identical with that by which a company in existence is already registered, or so nearly resembling the name as to be calculated to deceive, except where the company in existence is in the course of being dissolved and signifies its consent in such manner as the Registrar requires. (2) A company may not be registered by a name calculated to cause annoyance or offence to any person or by a name suggestive of blasphemy or indecency. (3) A company may not, without the consent of the Minister, be registered by a name which includes the words “Imperial”, “Royal”, “Crown”, “Empire”, “Government”, or any other word which imports or suggests that it enjoys the patronage of Her Britannic Majesty or the King of Swaziland or the Government. (4) If a company, through inadvertence or otherwise, is registered in conflict with subsection (1) or subsection (2) or subsection (3) the company may, in the circumstances described in subsection (1), with the sanction of the Registrar, change its name, and shall, in the circumstances described in subsection (2) or subsection (3), change its name. (5) Any company may, by special resolution and with the approval in writing of the Minister, change its name.

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(6) Where a company changes its name, the Registrar shall enter the new name on the register in place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case. (7) The change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company, and any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name. (8) The Registrar may on written application to him and on payment of the Prescribed fee reserve a name pending registration of a company or a change of name by an existing company: Provided that such reservation shall be for a period not exceeding thirty days or such extended period, not exceeding in all sixty days as the Registrar may in his discretion allow.

Alteration of objects of company.

11. (1) Subject to this section a company may, by special resolution, alter the provisions of its memorandum with respect to the objects of the company, so far as may be required to enable it — (a) to carry on its business more economically or more efficiently; or (b) to attain its main purpose by new or improved means; or (c) to enlarge or change the local area of its operations; or (d) to carry on some business which under existing circumstances may conveniently or advantageously be combined with the business of the company; or (e) to restrict or abandon any of the objects specified in the memorandum. (2) The alteration shall not take effect until and except in so far as it is confirmed on petition by the Court. (3) Before confirming the alteration the Court shall be satisfied — (a) that sufficient notice has been given to every mortgagee and to every holder of debentures of the company, and to any person or class of persons whose interest will, in the opinion of the Court, be affected by the alteration; and (b) that, with respect to every creditor who in the opinion of the Court is entitled to object, and who signifies his objection in manner directed by the Court, either his consent to the alteration has been obtained or his debt or claim has been discharged or has determined, or has been secured to the satisfaction of the Court: Provided that the Court may, in the case of any person or class of persons, for special reasons, dispense with the notice required by this section. (4) The Court may make an order confirming the alteration either wholly or in part, and on such terms and conditions as it thinks fit, and may make such order as to costs as it thinks proper. (5) The Court shall, in exercising its discretion under this section, have regard to the rights and interests of the members of the company or of any class of them, as well as to the rights and interests of the creditors, and may, if it thinks fit, adjourn the proceedings in order that an arrangement may be made to the satisfaction of the Court for the purchase of the interests of dissenting members; and may give such directions and make such orders as it may think expedient for facilitating or carrying into effect any such arrangement: Provided that no part of the capital of the company may be expended in any such purchase. (6) A certified copy of the order confirming the alteration, together with a copy of the memorandum as altered, shall, within fifteen days from the date of the order, be delivered by the company to the Registrar, and he shall register the same, and shall certify the registration under his hand, and his certificate shall be conclusive evidence that all the requirements of this Act with respect of the alteration and the confirmation thereof have been complied with, and thencefore the memorandum so altered shall be the memorandum of the company. (7) The Court may by order at any time extend the time for the delivery of documents to the Registrar under this section for such period as the Court may think proper.

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(8) If a company makes default in delivering to the Registrar any document required by this section to be delivered to him, it shall be guilty of an offence and liable on conviction to a fine not exceeding twenty emalangeni for every day during which it is in default.

ARTICLES OF ASSOCIATION

Registration of articles of association.

12. (1) There may, in the case of a limited company, and there shall in the case of an unlimited company, be registered with the memorandum, articles of association prescribing Regulations for the company. (2) Articles of associations may adopt all or any of the Regulations contained in Table A. (3) If an unlimited company has a share capital, the articles shall state the amount of share capital with which the company proposes to be registered. (4) If an unlimited company has not a share capital, the articles shall state the number of members with which the company proposes to be registered.

Application of Table “A”.

13. In the case of a limited company if articles are not registered, or, if articles are registered in so far as the articles do not exclude or modify the Regulations in Table A, those Regulations shall so far as applicable be the Regulations of the company in the same manner and to the same extent as if they were contained in duly registered articles.

Form and signature of articles.

14. Articles shall — (a) be divided into paragraphs numbered consecutively; (b) be signed by each subscriber of the memorandum in the presence of at least one witness, who shall attest the signature, and shall, in attesting, state his occupation and address.

Alteration of articles by special resolution.

15. Subject to the provisions of this Act and to the conditions contained in its memorandum, a company may by special resolution alter or add to its articles; and any alteration or addition so made shall be as valid as if originally contained in the articles; and be subject in like manner to alteration by special resolution.

GENERAL PROVISIONS

Effect of memorandum and articles.

16. (1) The memorandum and articles shall when registered, bind the company and members thereof to the same extent as if they respectively had been signed by each member, and contained covenants on the part of each member, his heirs and legal representatives, to observe all the provisions of the memorandum and of the articles, subject to the provisions of this Act. (2) All money payable by any member to the company under the memorandum or articles shall be a debt due from him to the company.

Registration of memorandum and articles.

17. (1) The memorandum and the articles (if any) together with a copy thereof certified by a notary public, or by two directors on oath, as a true copy, shall be transmitted or delivered to the Registrar. (2) Upon payment to him of the prescribed fees the Registrar shall, if the memorandum and the articles (if any) are in accordance with this Act, register them by filing the certified copy, and shall return to the company the original memorandum and articles (if any) with the date of registration endorsed.

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Effect of registration.

18. (1) Upon the registration of the memorandum of a company the Registrar shall certify under his hand that the company is incorporated, and, in the case of a limited company, that the company is limited. (2) From the date of incorporation mentioned in the certificate of incorporation, the subscribers of the memorandum together with such other persons as may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession, but with such liability on the part of the members, to contribute to the assets of the company in the event of its being wound up as is mentioned in this Act.

Conclusiveness of certificate of incorporation.

19. (1) A certificate of incorporation given by the Registrar in respect of any association shall be conclusive evidence that all the requirements of this Act in respect of registration and of matters precedent and incidental thereto, have been complied with, and that the association is a company authorised to be registered and duly registered under this Act. (2) An affidavit or other solemn declaration made by an attorney of the Court engaged in the formation of a company, or by a person named in the articles as a director or secretary of the company, of compliance with all or any of the said requirements shall be produced to the Registrar, who may accept such affidavit or declaration as sufficient evidence of compliance.

Copies of memorandum and articles to be given to members.

20. (1) Every company shall send to every member, at his request, on payment of twenty-five cents or such less sum as the company may prescribe, a copy of the memorandum and of the articles (if any) or shall afford to every member or to his duly authorised agent adequate facilities for making a copy of the memorandum and of the articles (if any). (2) If a company makes default in complying with the requirements of this section, it shall be guilty of an offence and on conviction be liable to a fine not exceeding two emalangeni.

ASSOCIATIONS NOT FOR PROFIT

Special provisions as to associations formed for purpose not of gain.

21. (1) Where it is proved to the satisfaction of the Minister that an association about to be formed as a limited company is to be formed for promoting commerce, art, science, religion, charity, or any other useful object, and intends to apply its profits (if any), or other income in promoting its objects, and to prohibit the payment of any dividend to its members, the Minister may, by License under his hand direct that the association be registered with limited liability, without the addition of the word “Limited” to its name, and the association may be registered accordingly. (2) A License by the Minister under this section may be granted on such conditions and subject to such Regulations as he may think fit, and those conditions and Regulations shall be binding upon the association, and shall, if the Minister so directs, be inserted in the memorandum and articles, or in one of those documents. (3) The association shall upon registration enjoy all the privileges of limited companies and be subject to all their obligations, except those of using the word “Limited” as any part of its name, and of publishing its name, and of sending lists of its members, directors, and managers to the Registrar. (4) A License under this section may at any time be revoked by the Minister, and upon revocation the Registrar shall enter the word “Limited” at the end of the name of the association upon the register, and the association shall cease to enjoy the exemptions and privileges granted by this section: Provided that before a License is so revoked the Minister shall give to the association notice in writing of his intention, and shall afford the association an opportunity of being heard in opposition to the revocation.

Company License. 21bis. (1) Every registered company and every foreign company which has a place of business in Swaziland shall, not later than the 31st day of July in each year, take out an annual License, to be known as a “company License”.

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(2) Every company which is registered, or every foreign company which establishes a place of business in Swaziland as the case may be, during the course of any year shall, within one month of the date of such registration or establishment, take out a company License for the remainder of the year. (3) Every company shall apply for a company License to the Registrar in a form prescribed by the Minister and shall in its application state, inter alia, the amount of its nominal capital at the time of such application and shall, in connexion with such application, furnish such further information as the Registrar may require. (4) An application for a company License shall be accompanied by a License fee calculated as follows — Capital License fee E Where the nominal capital of the company – does not exceed E10,000...... 20.00 exceeds E10,000 but does not exceed E30,000 ...... 40.00 exceeds E30,000 but does not exceed E50,000 ...... 100.00 exceeds E50,000...... 200.00 (Amended A.8/1985.) (5) On compliance by the company with subsections (3) and (4) the Registrar shall issue with a company License in a form prescribed by the Minister. (6) A company which fails to take out a company License or which pays any amount less than the License fee payable by it under subsection (4), shall pay as additional fee a further amount calculated at the rate of ten per centum of the fee so payable or of the amount short paid, as the case may be, for each month or part of a month, reckoned from the day upon which the said fee remains unpaid or short paid: Provided that any such additional fee shall not exceed the amount of the fee payable in terms of subsection (4) or so short paid, as the case may be. (7) All money payable under this section shall be due to the Government and be recoverable on its behalf by the Attorney-General by action in a court of competent jurisdiction. (8) An association not for profit in respect of which the Minister has granted a License in terms of section 21 shall be exempt from the payment of the License fee payable under this section. (9) For the purposes of this section, “year” shall mean a period of twelve months commencing on the first day of July. (Added A.22/1970.)

PART II

DISTRIBUTION AND REDUCTION OF SHARE CAPITAL, REGISTRATION OF UNLIMITED COMPANY AS LIMITED, AND UNLIMITED LIABILITY OF DIRECTORS

DISTRIBUTION OF SHARE CAPITAL

Nature of shares.

22. (1) The shares or other interest of any member in a company shall be movable property, transferable in manner provided by the articles of the company. (2) Each share in a company having a share capital shall be distinguished by an appropriate number.

Certificate of shares or stock.

23. (1) A certificate under the hands of two directors and the secretary of the company, or, if there be only one director, under the hand of that director and of the secretary, specifying any shares or stock held by any member, shall be prima facie evidence of the title of the member to the shares or stock. (2) Every certificate of vendors’, promotors’, founders’, or management shares in a company shall, for a period of six months immediately succeeding the registration of the company, be distinguished as such by having the words “vendors’ 541 shares”, “promotors’ shares”, “founders’ shares”, or “management shares” (as the case may be) conspicuously printed on the face of the certificate.

Definition of “member”.

24. (1) The subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company, and upon its registration shall be entered as members in its register of members. (2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members, shall be a member of the company.

25. (1) Every company shall keep in one or more books a register of its members, and enter therein the following particulars: (a) the names and addresses of the members, and in the case of a company having a share capital, a statement of the share held by each member, distinguishing each share by its number and by its class or kind, and of the amount paid or agreed to be considered as paid on the shares of each member; (b) the date at which each person was entered in the register as a member; (c) the date at which any person ceased to be a member. (2) If a company fails to comply with the section, it shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day during which the default continues; and every director, manager, secretary, or other officer of the company who knowingly and wilfully authorises or permits the default shall be guilty of an offence and liable on conviction to the like penalty.

Annual list of members and summary.

26. (1) Every company, including a foreign company, having a share capital shall during the month of June of every year make a list of all persons who are members of the company and all persons who, holding shares not fully paid up, ceased to be members since the date of the last return, or in the case of the first return, of the incorporation of the company. (2) The list shall, except in the case of a public company, state the names and addresses of all past and present members therein mentioned, and the number of shares held by each of the existing members at the date of the return, specifying shares transferred since the date of the last return, or, in the case of a first return, of the incorporation of the company, by persons who are still members and who have ceased to be members respectively and the dates of the registration of the transfers. (3) The list shall state the situation of the registered office of the company, the date of the last annual general meeting, the date of incorporation and registered number and shall contain a summary distinguishing between shares issued for cash and shares issued as fully or partly paid up otherwise than in cash, specifying the following particulars: (a) the amount of the share capital of the company and number of the shares into which it is divided; (b) the number of shares taken from the commencement of the company up to the date of return; (c) the amount called up on each share; (d) the total amount of calls received; (e) the total amount of calls unpaid; (f) the total amount of the sums (if any) paid by way of commission in respect of any shares or debenture, since the date of the last return; (g) the total number of shares forfeited; (h) the total number of shares or stock for which shares warrants are outstanding at the date of return; (i) the total amount of share warrants issued and surrendered respectively since the date of the last return; (j) the number of shares or amount of stock comprised in each share warrants;

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(k) the names and addresses of the persons who at the date of the return are the directors, managers, secretary and auditor of the company; and (l) the total amount of debt due from the company in respect of all mortgages and charges. (4) Save in the case of a private company the summary referred to in subsection (3) shall include a statement in the form of a balance sheet, audited by the company’s auditors, containing summary of its share capital, its liabilities and its assets, giving such particulars as will disclose the general nature of such liabilities and assets, and how the values of those fixed assets have been arrived at: Provided that such balance sheet need not include statement of profit and loss. (5) The list and summary shall be contained in a separate part of the register of members and the company shall at the same time as it makes application for its annual company License, but not later than 31 July of each year, and in the form prescribed by the Minister transmit to the Registrar a copy signed by, or on behalf of, a director, manager or secretary of the company. (6) If a company fails to comply with any requirements of this section it shall be guilty of an offence and liable on conviction to a fine of ten emalangeni for every day that its default continues, and every director, secretary or other officer of the company who knowingly and wilfully authorises or permits such default shall be guilty of an offence and liable on conviction to a like penalty. (Amended K.O-I-C. 7/1978.)

Trust not to be entered on register.

27. No notice of any trust, expressed, implied, or constructive, shall be entered on the register or be receivable by the Registrar.

Registration of transfer at request of transferor.

28. On the application of the transferor of any share or interest in a company, the company shall enter in its register of members the name of the transferee in the same manner and subject to the same conditions as if the application for the entry were made by transferee and subject also to the law for the being in force relating to stamp duty or duty upon estates of deceased persons: Provided that no transfer of vendors’, promotors’, founders’, or management shares in a company, nor any contract to transfer or dispose of any such shares shall be valid if made before the expiration of six months immediately succeeding the registration of the company.

Transfer by legal representative.

29. A transfer of the share or other interest of a deceased member of a company made by his legal representative shall, although the legal representative is not himself a member, be as valid as if he had been a member at the date of the execution of the instrument of transfer, subject always to the law for the time being in force relating to stamp duty or duty upon the estates of deceased persons.

Inspection of register of members.

30. (1) The register of members, commencing from the date of registration of the company, shall be kept at the registered office of the company, and, except when closed under the provisions of this Act, shall during business hours (subject to such reasonable restrictions as the company in general meeting may impose, so that not less than two hours in each day be allowed for inspection) be open to the inspection of any member or his attorney gratis, and, except in the case of a private company, to the inspection of any other person on payment of twenty-five cents or such less sum as the company may prescribe, for each inspection. (2) Any member and, except in the case of a private company, any other person may require the company to furnish him with extracts from such register, or from the list and summary required by this Act, on payment of ten cents or such less sum as the company may prescribe, for every hundred words or fractional part thereof required to be extracted, or the

543 company shall afford to any member and, except in the case of a private company, to any other person or his duly authorised agent adequate facilities for making such extracts. (3) If any inspection, extract, or facilities for making extracts, required under this section is refused, the company shall be liable for each refusal to a fine not exceeding four emalangeni and a further fine not exceeding four emalangeni for every day during which the refusal continues and every director, manager, secretary or other officer of the company who knowingly authorises or permits the refusal shall be liable to the like penalty; and the Court may by order compel an immediate inspection of the register or the furnishing of the extract or the affording of facilities for making the same.

Power to close register.

31. A company may, upon giving notice by advertisement in the Gazette and a newspaper circulating in Swaziland, close the register of members for any time or times not exceeding in the whole sixty days in each year.

Remedy for improper entry or omission of entry in register.

32. (1) If — (a) the name of any person is, without sufficient cause, entered in or omitted from the register of members of a company; or (b) default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member, the person aggrieved, or an member of the company or the company, may apply to the Court for rectification of the register. (2) The application may be made by motion or in such other manner as the Court may direct; and the Court may either refuse the application, or may order rectification of the register, and payment by the company, or by any director, manager, secretary, or other officer of the company, of any damages sustained by any party aggrieved. (3) On any application under this section the Court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or alleged members or between members or alleged members on the one hand and the company on the other hand; and generally may decide any question necessary or expedient to be decided for the rectification of the register. (4) In the case of a company required by this Act to transmit a list of its members to the Registrar, the Court when making an order for the rectification of the register, shall by its order direct notice of the rectification to be given to the Registrar.

33. The register of members shall be prima facie evidence of any matters by this Act directed or authorised to be inserted therein.

Branch registers in foreign countries.

34. (1) A company having a share capital, may, if so authorised by its articles, cause to be kept in any foreign country a register of members resident in that foreign country (in this Act called a branch register). (2) The company shall give to the Registrar notice of the situation of the office where any branch register is kept, and of any change in its situation, and of the discontinuance of the office in the event of its being discontinued.

Regulations as to branch register.

35. (1) A branch register shall be deemed to be a part of the company’s register of members (in this section called the principal register). (2) It shall be kept in the same manner in which the principal register is by this Act required to be kept, except that the advertisement before closing the register shall, for a reasonable time before the closing, be inserted in some newspaper circulating in the district wherein the branch register is kept.

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(3) The company shall transmit to its registered office a copy of every entry in its branch register as soon as may be after the entry is made; and shall cause to be kept at its registered office duly entered up from time to time, a duplicate of its branch register, and the duplicate shall, for all the purposes of this Act, be deemed to be part of the principal register. (4) The company may discontinue to keep any branch register, and thereupon all entries in that register shall be transferred to some other branch register kept by the company in the same foreign country, or to the principal register. (5) Subject to this Act and of any law for the time being in force relating to stamp duty or to duty upon the estates of deceased persons, any company may, by its articles make such provisions as it may think fit respecting the keeping of branch registers.

Issue and effect of share warrants to bearer.

36. (1) A limited company if so authorised by its articles, may, with respect to any fully paid-up shares, or to stock, issue a warrant stating that the bearer of the warrant is entitled to the shares or stock therein specified, and may provide by coupons or otherwise, for the payment of the future dividends on the shares or stock included in the warrant, in this Act termed a share warrant. (2) A share warrant shall entitle the bearer thereof to the shares or stock therein specified, and such shares or stock may be transferred by the delivery of the share warrant. (3) The bearer of a share warrant shall, subject to the articles of the company, be entitled, on surrendering it for cancellation, to have his name entered as a member in the register of members; and the company shall be responsible for any loss incurred by any person by reason of the company entering in its register the name of a bearer of a share warrant in respect of the shares or stock therein specified without the share warrant being surrendered and cancelled. (4) The bearer of a share warrant may, if the articles of the company so provide be deemed to be a member of the company within the meaning of this Act, either to the full extent or for any purposes defined in the articles; except that he shall not be qualified, in respect of the shares or stock specified in the warrant, for being a director or manager of the company, in cases where such a qualification is required by the articles. (5) On the issue of a share warrant the company shall strike out of its register of members the name of the member then entered therein as holding the shares or stock specified in the warrant as if he had ceased to be a member, and shall enter in the register the following particulars, namely: (i) the fact of the issue of the warrant; (ii) a statement of the shares or stock included in the warrant, distinguishing each share by its number; and (iii) the date of the issue of the warrant. (6) Until the warrant is surrendered the said particulars shall be deemed to be the particulars required by this Act to be entered in the register of members; and on the surrender the date of the surrender shall be entered as if it were the date at which a person ceased to be a member.

Forgery, personation, unlawfully engraving plates, etc.

37. (1) If any person — (a) with intent to defraud, forges or alters or offers, utters, disposes of, or puts off, knowing the same to be forged or altered, any share warrant or coupon, or any document purporting to be a share warrant or coupon issued in pursuance of this Act; or by means of any such forged or altered share warrant, coupon, or document, purporting as aforesaid demands or endeavours to obtain or receive any share or interest in any company, or to receive any dividend or money payable in respect thereof, knowing the share warrant, coupon, or document to be forged or altered; or (c) falsely and deceitfully personates any owner of any share or interest in any company, or of any share warrant or coupon issued in pursuance of this Act, and thereby obtains or endeavours to obtain any such share or interest or share warrant or coupon, or receives or endeavours to receive any money due to any such owner as if the offender were the true and lawful owner; he shall be guilty of an offence, and liable on conviction to imprisonment for a period not exceeding ten years.

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(2) If any person without lawful authority or excuse (the proof whereof shall lie upon him), engraves or makes upon any plate, wood, stone, or other material any share warrant, or coupon, purporting to be a share warrant, or coupon, issued or made by any particular company in pursuance of this Act or to be a blank share warrant or coupon so issued or made, or to be a part of such a share warrant or coupon, or uses and such plate, wood, stone, or other material for the making or printing of any such share warrant or coupon, or of any such blank share warrant or coupon, or any part thereof respectively, or knowingly has in his custody or possession any such plate, wood, stone, or other material he shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding ten years.

Power of company to arrange for different amounts being paid on shares.

38. A company, if so authorised by its articles, may do any one or more of the following things, namely — (a) make arrangements on the issue of shares for a difference between classes of shareholders in the amounts and times of payments of calls on their shares; (b) accept from any member who assents thereto the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up and, if the whole amount unpaid on any shares be paid, issue those shares as fully paid up; (c) pay dividend in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others.

Power of limited company to alter its share capital.

39. (1) A limited company, if so authorised by its articles, may alter the conditions of its memorandum as follows (that is to say), it may — (a) increase its share capital by the issue of new shares of such amount as it thinks expedient; (b) consolidate and divide all or any of its share capital into shares of larger amount than its existing shares; (c) convert all or any of its paid-up shares into stock, and reconvert such stock into paid-up shares of any denomination. (d) sub-divide its shares, or any of them, into shares of smaller amount than is fixed by the memorandum, so, however, that in the sub-division the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived; (e) cancel shares which at the date of passing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled. (2) The powers conferred by this section with respect to sub-division of shares shall be exercised by special resolution. (3) Where any alteration has been made under this section in the memorandum of a company, every copy of the memorandum issued after the date of the alteration shall be in accordance with the alteration. (4) If a company makes default in complying with subsection (3) it shall be guilty of an offence and liable on conviction to a fine not exceeding two emalangeni for each copy in respect of which default is made; and every director and officer of the company who knowingly and wilfully authorises or permits the default shall be guilty of an offence and liable on conviction to the like penalty. (5) A cancellation of shares in pursuance of this section shall not be deemed to be a reduction of share capital within the meaning of this Act.

Notice to Registrar of consolidation of capital, conversion of shares into stock, etc.

40. Where a company having a share capital has consolidated and divided its share capital into shares of larger amount than its existing shares, or converted any of its shares into stock, or reconverted stock into shares, it shall give notice to the Registrar of the consolidation and division, conversion, or reconversion specifying the shares consolidated and divided, or

546 converted, or the stock reconverted, and until such notice is given the consolidation and division, conversion, or reconversion shall not take effect.

Effect of conversion of shares into stock.

41. Where a company having a share capital has converted any of its shares into stock and given notice of the conversion to the Registrar, all the provisions of this Act which are applicable to shares only shall cease as to so much of the share capital as is converted into stock; and the register of the members of the company and the list of members to be transmitted to the Registrar shall show the amount of stock held by each member instead of the amount of shares and the particulars relating to shares hereinbefore required by this Act.

Notice of increase of share capital or of members.

42. (1) Where a company having a share capital, whether its shares have or have not been converted into stock, has increased its share beyond the registered capital, and where a company not having a share capital has increased the number of members beyond the registered number, it shall give to the Registrar, in the case of an increase of share capital, within fifteen days after the passing, or in the case of a special resolution the confirmation of the resolution authorising the increase, and in the case of an increase of members within fifteen days after the increase was resolved upon or took place, notice of the increase of capital or members, and the Registrar shall record the increase, and the resolution shall not take effect until the increase is so recorded. (2) If a company makes default in complying with the requirements of this section it shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day during which the default continues, and every director, manager, secretary, or other officer of the company who knowingly or wilfully authorises or permits the default shall be liable to the like penalty.

Reorganisation of share capital.

43. (1) A limited company may, by special resolution confirmed by an order of the Court modify the conditions contained in its memorandum so as to reorganise its share capital, whether by the consolidation of shares of different classes or by the division of its shares into shares of different classes: Provided that no preference or special privilege attaching to or belonging to any class of shares shall be interfered with, except by a resolution passed by a majority in number of shareholders of that class holding three-fourths of the share capital of that class and confirmed at a meeting of shareholders of that class in the same manner, as a special resolution of the company is required to be confirmed, and every resolution so passed shall bind all the shareholders of the class. (2) Where an order is made under this section a certified copy thereof shall be lodged with the Registrar within seven days after the making of the order, or within such further time as the Court may allow and the resolution shall not take effect until such copy has been so lodged.

REDUCTION OF SHARE CAPITAL

Special resolution for reduction of capital

44. (1) Subject to confirmation by the Court, a limited company, if so authorised by its articles, may by special resolution reduce its share capital in any way, and in particular (without prejudice to the generality of the power hereby conferred) may — (a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up; or (b) either with or without extinguishing or reducing liability of any of its shares, cancel any paid-up share capital which is lost or unrepresented by available assets; or (c) either with or without extinguishing or reducing the liability on any of its shares, pay off any paid-up share capital which is in excess of the wants of the company; and may, if and so far as is necessary alter its memorandum by reducing the amount of its share capital and of its shares accordingly.

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(2) A special resolution under this section is in this Act called a resolution for reducing share capital.

Application to Court for confirmation order.

45. Where a company has passed and confirmed a resolution for reducing share capital, it may apply to the Court by petition for an order confirming the reduction.

Addition to name of company of “and reduced”.

46. On and from the confirmation by a company of a resolution for reducing share capital, or where the reduction does not involve either the diminution of any liability in respect of unpaid share capital or the payment to any shareholder of any paid-up share capital then on and from the presentation of the petition for confirming the reduction the company shall add to its name, until such date as the Court may fix, the words “and reduced” as the last words in its name, and those words shall, until that date, be deemed to be part of the name of the company: Provided that, where the reduction does not involve either the diminution of any liability in respect of unpaid share capital or the payment to any shareholder of any paid-up share capital the Court may, if it thinks expedient, dispense altogether with the addition of the words “and reduced”.

Objections by creditors, and settlement of list of objecting creditors.

47. (1) Where the proposed reduction of share capital involves either the diminution of liability in respect of unpaid share capital or the payment to any shareholder of any paid-up share capital, and in any other case if the Court so directs, every creditor of the company who at the date fixed by the Court is entitled to any debt of claim which, if that date were the commencement of the winding-up of the company, would be admissible in proof against the company, shall be entitled to object to the reduction. (2) The Court shall settle a list of creditors so entitled to object, and for that purpose shall ascertain as far as possible without requiring an application from any creditor, the names of those creditors and the nature and amount of their debts or claims, and may publish notices fixing a day or days within which creditors not entered on the list are to claim to be so entered or are to be excluded from the right of objecting to the reduction. (3) Where a creditor entered on the list, whose debt or claim is not discharged or determined, does not consent to the reduction, the Court may, if it thinks fit, dispense with the consent of that creditor, on the company securing the payment of his debt or claim by appropriating, as the Court may direct, the following amount (that is to say) — (a) if the company admits the full amount of his debt or claim, or though not admitting it, is willing to provide for it, then the full amount of the debt or claim; (b) if the company does not admit or is not willing to provide for the full amount of the debt or claim, or if the amount is contingent or not ascertained, then an amount fixed by the Court after the like enquiry and adjudication as if the company were being wound up by the Court.

Order confirming reduction.

48. The Court, if satisfied, with respect to every creditor of the company who under this Act is entitled to object to the reduction, that either his consent to the reduction has been obtained or his debt or claim has been discharged or has determined, or has been secured, may make an order confirming the reduction on such terms and conditions as it thinks fit.

Registration of order and minute of reduction.

49. (1) The Registrar on production to him of an order of the Court confirming the reduction of the share capital of a company, and the delivery to him of a copy of the order and of a minute (approved by the Court), showing with respect to the share capital of the company, as altered by the order, the amount of such capital, the number of shares into which it is to be divided, the amount of each share, and the amount (if any) at the date of the registration deemed to be paid up on each share, shall register the order and minute. (2) On the registration, and not before, the resolution for reducing share capital as confirmed by the order so registered shall take effect.

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(3) Notice of the registration shall be published in such manner as the Court may direct. (4) The Registrar shall certify under his hand, the registration of the order and minute, and his certificate shall be conclusive evidence that all the requirements of this Act with respect to reduction of share capital have been complied with, and that the share capital of the company is such as is stated in the minute.

Minute to form part of memorandum.

50. (1) The minute when registered shall be deemed to be substituted for the corresponding part of the memorandum of the company and shall be as valid and alterable as if it had been originally contained therein; and shall be embodied in every copy of the memorandum issued after its registration. (2) If a company makes default in complying with the requirements of this section, it shall be guilty of an offence and liable on conviction to a fine not exceeding two emalangeni for each copy in respect of which default is made, and every director, manager, secretary or other officer of the company who knowingly and wilfully authorises or permits the default shall be guilty of an offence and liable on conviction to the like penalty.

Liability of members in respect of reduced shares.

51. (1) A member of the company, past or present, shall not be liable, in respect of any share, to any call or contribution exceeding in amount the difference (if any) between the amount paid, or (as the case may be) the reduced amount (if any) which is to be deemed to have been paid on the share and the amount of the share as fixed by the minute: Provided that if any creditor, entitled in respect of any debt or claim to object to the reduction of share capital, is, by reason of his ignorance of the proceedings for reduction, or of their nature and effect with respect to his claim, not entered on the list of the creditors, and, after the reduction, the company is unable, within the meaning of the provisions of this Act relating to winding-up by the Court, to pay the amount of his debt or claim, then — (a) every person who was a member of the company at the date of the registration of the order for reduction and minute, shall be liable to contribute for the payment of that debt or claim an amount not exceeding the amount which he would have been liable to contribute if the company had commenced to be wound up on the day before that registration; and (b) if the company is wound up, the Court, on the application of any such creditor, and proof of his ignorance as aforesaid may, if it thinks fit, settle accordingly a list of persons so liable to contribute, and make and enforce calls and orders on the contributories settled on the list as if they were ordinary contributories in a winding-up. (2) Nothing in this section shall effect the rights of the contributories among themselves.

Penalties for concealment of name of creditor.

52. If any director, manager, or officer of the company wilfully conceals the name of any creditor entitled to object to the reduction, or wilfully misrepresents the nature or amount of the debt or claim of any creditor, or if any director, manager, secretary or other officer of the company aids or abets in or is privy to any such concealment or misrepresentation as aforesaid, every such director, manager, or officer shall be guilty of an offence, and liable on conviction to a fine not exceeding two hundred emalangeni, or to imprisonment for a period not exceeding twelve months or to both such fine and such imprisonment.

Publication of reasons for reduction.

53. If any case of reduction of capital, the Court may require the company to publish as the Court directs the reasons for reduction, or such other information in regard thereto as the Court may think expedient with a view to give proper information to the public, and, if the Court thinks fit, the causes which led to the reduction.

REGISTRATION OF UNLIMITED COMPANY AS LIMITED

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Registration of unlimited company as limited.

54. (1) Subject to this section, a company registered as unlimited may register under this Act as limited, but such registration as a limited company shall not affect any debts, liabilities, obligations, or contracts, incurred or entered into by, to, with, or on behalf of, the company before the registration. (2) On registration in pursuance of this section the Registrar shall close the former registration of the company, and may dispense with the delivery to him of copies of any documents with which he was furnished on the occasion of the original registration of the company, but, save as aforesaid, the registration shall take place in the same manner and shall have effect as if it were the first registration of the company under this Act.

Power of unlimited company to provide for reserve share capital on registration.

55. An unlimited company, having a share capital may, by its resolution for registration as a limited company in pursuance of this Act, do either or both of the following things, namely: (a) increase the nominal amount of its share capital by increasing the nominal amount of each of its shares but subject to the condition that no part of the amount by which the share capital is so increased shall be capable of being called up, except in the event and for the purposes of the company being wound up; (b) provide that a specified portion of its uncalled share capital shall not be capable of being called up except in the event and for the purposes of the company being wound up.

RESERVE LIABILITY OF LIMITED COMPANY

Reserve liability of limited company.

56. A limited company may, by special resolution, determine that any portion of its share capital which has not been already called up shall not be capable of being called up, except in the event and for the purposes of the company being wound up, and thereupon that portion of its share capital shall not be capable of being called up except in the event and for the purposes aforesaid.

UNLIMITED LIABILITY OF DIRECTORS

Limited company may have directors with unlimited liability.

57. (1) In a limited company the liability of the directors or managers, or of a managing director, may, if so provided by the memorandum, be unlimited. (2) In a limited company in which the liability of a director or manager is unlimited, the directors or managers of the company (if any) and the member who proposes a person for election or appointment to the office of director or manager, shall add to that proposal a statement that the liability of the person holding that office will be unlimited, and the promoters, directors, managers, and secretary (if any) of the company, or one of them shall, before the person accepts the office or acts therein, give him notice in writing that his liability will be unlimited. (3) If any director, manager, or proposer makes default in adding such statement, or if any promotor, director, manager, or secretary makes default in giving such notice, he shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred emalangeni, and shall also be liable for any damage which the person so elected or appointed may sustain by reason of the default, but the liability of the person elected or appointed shall not be affected by the default.

Special resolution of limited company making liability of directors unlimited.

58. (1) A limited company, if so authorised by its articles, may be special resolution, alter its memorandum so as to render unlimited the liability of its directors, or managers, or of any managing director. (2) Upon the confirmation of such special resolution the provisions, thereof shall be as valid as if they had been originally contained in the memorandum; and a copy of the special resolution shall be embodied therein or annexed to every copy of the memorandum issued after the confirmation of the resolution.

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(3) If a company makes default in complying with the requirements of this section, it shall be guilty of an offence and liable on conviction to a fine not exceeding two emalangeni for each copy in respect of which default is made; and every director, manager, secretary, or other officer of the company who knowingly and wilfully authorises or permits the default shall be guilty of an offence and liable on conviction to the like penalty.

PART III

MANAGEMENT AND ADMINISTRATION

OFFICE AND NAME

Registered office of company.

59. (1) Every company shall have a registered office in Swaziland to which all communications and notices may be addressed. (2) Notice of the situation of such registered office, and of any change therein, shall be given to the Registrar, who shall record the same, and until such notice is given the company shall not be deemed to have complied with this section. (3) If a company carries on business without complying with the requirements of this section, it shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day during which it so carries on business.

Publication of name by limited company.

60. (1) Every limited company shall — (a) paint or affix, and keep painted or affixed its name on the outside of every office or place in which its business is carried on in a conspicuous position, and in letters easily legible; (b) have its name engraved in legible characters on its seal (if any); (c) have its name mentioned in legible characters in all notices, advertisements and other official publications of the company, and in all bills of exchange, promissory notes, endorsements, cheques, and orders for money or goods purporting to be signed by or on behalf of the company, and in all bills of parcels, invoices, notepaper receipts, and letters of credit of the company. (2) If a limited company does not paint or affix, and keep painted or affixed, its name in manner directed by this Act, it shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for not so painting or affixing its name, and for every day during which its name is not so kept painted or affixed, and every director, manager, secretary or other officer of the company who knowingly and wilfully authorises or permits the default shall be guilty of an offence and liable on conviction to the like penalty. (3) If any director, manager, secretary or other officer of a limited company or any person on its behalf, uses or authorises the use of any seal purporting to be a seal of the company whereon its name is not so engraved as aforesaid, or issues or authorises the issue of any notice, advertisement, or other official publication of the company or signs or authorises to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque, order for money or goods, or issues or authorises to be issued any bill of parcels, invoice, receipt, or letter of credit of the company, wherein its name is not mentioned in manner aforesaid, he shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred emalangeni, and shall further be liable to the holder of any such bill of exchange, promissory note, cheque, or order for money or goods, for the amount thereof, unless it is duly paid by the company.

MEETINGS AND PROCEEDINGS

Annual general meeting.

61. (1) Every company, at such times are in this section prescribed, shall hold general meetings to be known and described in the notices calling such meetings as annual general meetings of such company. (2) Such meetings shall be held —

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(a) in the case of the first such meeting, within a period of eighteen months after the date of the incorporation of the company concerned; (b) thereafter within not more than six months after the end of every ensuing financial year of such company; and (c) within not more than fifteen months after the date of the last preceding such meeting of that company. (3) The annual general meeting of a company shall deal with and dispose of the matter prescribed by this Order and may deal with and dispose of such further matters as are provided for in the articles of the company and, subject to this Order, any matters capable of being dealt with by any general meeting of the company. (4) The Registrar may, on application to him before the expiry of the period within which an annual general meeting of a company must be held and on good cause shown, and on payment of the prescribed fee, extend such period by a period not exceeding six months but, notwithstanding any such extension, the date for the holding of the first annual general meeting following the meeting in respect of which the extension is granted, shall be determined as if such meeting had been held on the last day on which it should have been held if the extension had not been granted. (5) If for any reason an annual general meeting of a company is not or cannot be held as provided in this section or any matter required by this Order to be dealt with and disposed of at such meeting is not dealt with thereat, the Registrar may, on application by the company of any member of its or his legal representative and on payment of the prescribed fee, call or direct the calling of a general meeting of the company which shall be deemed to be an annual general meeting, and may give such ancillary or consequential directions as he may think expedient, including directions modifying or supplementing, in relation to the calling, holding and conduct of the meeting, the operation of the company’s articles, and directions providing for one member or the legal representative of a member or any specified number of members present in person or by proxy, to be deemed to constitute a meeting, and any meeting called, held and conducted in accordance with any such direction shall for all purposes be deemed to be an annual general meeting of the company duly called, held and conducted. (6) For the purpose of determining the date for holding of the next succeeding annual general meeting of a company after a meeting held in pursuance of subsection (5) of this subsection the provisions of subsection (4) shall mutatis mutandis apply. (7) Any company which fails to comply with any provision of subsections (1) and (2) or with any direction given by the Registrar under subsection (5), and every director or officer of the company who knowingly is a party to the failure, shall be guilty of an offence. (8) A company which has failed to hold its annual general meeting within the time or extended time prescribed by subsections (1) and (4), or as directed by the Registrar under subsection (5), shall further be liable to pay to the Registrar additional fees of one lilangeni for every day during which the default continues but not exceeding a maximum of twenty emalangeni, and the decisions of the Registrar as to the number of days during which the company is in default shall be final. (Amended K.O-I-C. 7/1978.)

First statutory meeting of company.

62. (1) Every limited company shall, within a period of not less than one month nor more than three months from the date at which the company is entitled to commence business, hold a general meeting of the members of the company which shall be called the statutory meeting (2) The directors shall, at least seven days before the day on which the meeting is held, transmit a report (in this Act called “the statutory report”) to every member of the company and to every other person entitled under this Act to receive it. (3) The statutory report shall be certified by not less than two directors of the company, or, where there are less than two directors, by the sole director and manager, and shall state — (a) the total number of shares allotted, distinguishing shares allotted as fully or partly paid up otherwise than in cash, and stating in the case of shares partly paid up the extent to which they are so paid up, and in either case the consideration for which they have been allotted;

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(b) the total amount of cash received by the company in respect of all the shares allotted, distinguished as aforesaid; (c) an abstract of the receipts of the company on account of its capital whether from shares or debentures, and of the payment made thereout, up to a date within seven days of the date of the report, exhibiting under distinctive headings the receipts of the company from shares and debentures and other sources, the payments made thereout, and particulars concerning the balance remaining in hand, and an account or estimate of the preliminary expenses of the company; (d) the names, addresses, and occupations of the directors, auditors, managers (if any), and secretary of the company; and (e) the particulars of any contract, the modification of which is to be submitted to the meeting for its approval, together with the particulars of the modification or proposed modification. (4) The statutory report shall, so far as it relates to the shares allotted by the company, and to the cash received in respect of such shares, and to the receipts and payments of the company on capital account, be certified as correct by the auditors of the company. (5) The directors shall cause a copy of the statutory report, certified as by this section required, to be lodged with the Registrar forthwith after the transmission thereof to the members of the company. (6) The directors shall cause a list showing the names and addresses of the members of the company and the number of shares held by them respectively, to be produced at the commencement of the meeting, and to remain open and accessible to any member of the company during the continuance of the meeting. (7) The members of the company present at the meeting shall be at liberty to discuss any matter relating to the formation of the company, or arising out the statutory report, whether previous notice has been given or not, but no resolution of which notice has not been given in accordance with the articles or with section 65 may be passed. (8) The meeting may adjourn from time to time, and at any adjourned meeting any resolution of which notice has been given in accordance with the articles, either before, at, or subsequently to the former meeting, may be passed, and the adjourned meeting shall have the same powers as an original meeting. (9) If a petition is presented to the Court in manner provided by Part IV for winding-up the company on the ground of default in lodging the statutory report or in holding the statutory meeting, the Court may, instead of directing that the company be wound up, give directions for the statutory report to be lodged or for a meeting to be held, or make such other order as may be just. (10) The provisions of this section shall not apply to a private company.

(Amended K.O-I-C. 7/1978.)

Extraordinary general meeting.

63. (1) Notwithstanding anything in the articles of a company, the directors of a company shall, on the requisition of the holders of not less than one-tenth of the issued share capital of the company upon which all calls or other sums then due have been paid, forthwith proceed to convene an extraordinary general meeting of the company. (2) The requisition shall state the objects of the meeting, and shall be signed by the requisitions and deposited at the registered office of the company, and may consist of several documents in like form, each signed by one or more requisitionists. (3) If in the case of a meeting at which no extraordinary or special resolution is to be proposed, the directors of the company do not proceed to cause such a meeting to be held within twenty-one days from the date of the requisition being so deposited, the requisitionists, or a majority of them in value, may themselves convene the meeting, but any meeting so convened shall not be held after three months from the date of the deposit. (4) If at any meeting convened under this section an extraordinary or special resolution is to be proposed by one of the requisitionists, the period of notice of the meeting shall be given in accordance with the provisions of section 65: Provided that if the directors of the company do not proceed to call such meeting as is referred to in this subsection to be held within three months from the date of the requisition being deposited the requisitionists or a majority of them in value

553 may themselves convene the meeting but any meeting so convened shall not be held later than six months from the date of the deposit. (5) If at any such meeting a resolution requiring confirmation at another meeting is passed, the directors shall forthwith convene a further extraordinary general meeting for the purpose of considering the resolution, and, if thought fit, of confirming it as a special resolution and, if the directors do not convene the meeting within seven days from the date of the passing of the first resolution, the requisitionists, or a majority of them in value, may themselves convene the meeting. (6) Save as in subsection (4) is provided any meeting convened under this section by the requisitionists shall be convened in the same manner, as nearly as possible, as that in which meetings are to be convened by directors.

Provisions as to meetings and votes.

64. Save as is otherwise provided by this Act, the manner, time, and place of holding general meetings of a company (including the statutory meeting) and the regulation of proceedings at general meetings of a company shall be as provided by the articles.

Notice to foreign shareholders in case of matters requiring the sanction of an extraordinary or special resolution.

65. (1) Anything to the contrary notwithstanding in the articles, no extraordinary or special resolution of a company, nor any act or thing done by a company or its directors requiring under this Act the sanction of an extraordinary or special resolution, shall be valid unless notice, as in this section is prescribed, be given of the meeting at which the extra-ordinary or special resolution or act or thing requiring the sanction of such a resolution is to be proposed. (2) If the registered address of any shareholder is outside Swaziland but in South Africa, notice of the meeting shall be published three weeks at least before the date fixed for the meeting in the Gazette and in a leading daily newspaper published in Johannesburg. (3) If the registered address of any shareholder is outside South Africa, notice of the meeting shall be published two months at least before the date fixed for the meeting in a leading daily newspaper published in London. (4) If the registered addresses of any shareholders are in one case within and in another case outside South Africa, the notice shall be published in all the publication herein described two months at least before the date fixed for the meeting. (5) Nothing in this section shall be construed as preventing a company giving such a notice, in lieu of so publishing it, by prepaid registered post addressed to each member at his registered address. (6) For the purposes of this section —

“registered address” shall mean the address given by the shareholder and registered in the books of the company as the address to which notices of meetings may be sent to him, but shall in no case (except where the shareholder is a director, manager, secretary, or officer of the company) be the address of the registered office of the company or of any branch register hereinbefore described; and

“South Africa” shall include any part of Africa south of the Equator. (7) Nothing in this section shall apply to a private company.

Representation of companies at meetings of other companies of which they are members.

66. A company which is a member of another company may, by resolution of the directors, authorise any of its officers or any other person to act as its representative at any meeting of that other company, and the person so authorised shall be entitled to exercise the same powers on behalf of the company which he represents as if he were an individual shareholder of that other company.

Extraordinary and special resolution.

67. (1) A resolution shall be an extraordinary resolution when it has been passed by a majority of not less than two- thirds of such members entitled to vote as are present in person or by proxy (where proxies are allowed) at a general meeting of which notice, specifying the intention to propose the resolution, and the general nature thereof, has been duly given, and

554 at which members entitled in the aggregate to not less than one-fourth of the total votes of the company are present in person or by proxy (where proxies are allowed): Provided that if less than one-fourth of the total votes be present at the meeting, it shall stand adjourned to the same day in the following week, or, if that day be a public holiday to the next succeeding day other than a public holiday; and Provided further that at the adjourned meeting the members present in person or by proxy (where proxies are allowed) may deal with the business for which the original meeting was convened, and a resolution passed by not less than two-thirds of such members shall be deemed to be an extraordinary resolution notwithstanding that less than one-fourth of the total votes aforesaid be present. (2) A resolution shall be a special resolution when it has been — (a) passed in manner required for the passing of an extraordinary resolution; and (b) confirmed by a majority of such members entitled to vote as are present in person or by proxy (where proxies are allowed) at a subsequent general meeting, of which notice has been duly given and held after an interval of not less than fourteen days, nor more than one month, from the date of the first meeting or adjourned meeting as the case may be. (3) At any meeting at which an extraordinary resolution is submitted to be passed or a special resolution is submitted to be passed or confirmed, a declaration of the chairman that the resolution is carried shall, unless a poll is demanded, be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution. (4) At any meeting at which an extraordinary resolution is submitted to be passed or a special resolution is submitted to be passed or confirmed, a poll may be demanded by a person or persons for the time entitled according to the articles to vote, and holding not less than one-sixtieth of the share capital represented at the meeting. (5) When a poll is demanded in accordance with this section, in computing the majority on the poll regard shall be had to the number of votes to which each member is entitled by the articles of the company. (6) For the purposes of this section notice of a meeting shall be deemed to be duly given and the meeting shall be deemed to be duly held when the notice is given and the meeting held in manner, provided by the articles subject always, in the case or notice, to section 65.

Registration of copies of special and extraordinary resolutions.

68. (1) A copy of every special and extraordinary resolution shall within fifteen days from the confirmation of the special resolution, or from the passing of the extraordinary resolution (as the case may be), be transmitted to the Registrar, who shall record the same. (2) Where articles have been registered a copy of every special resolution for the time being in force shall be embodied in or annexed to every copy of the articles issued after the confirmation of the resolution. (3) Where articles have not been registered, a copy of every special resolution shall be transmitted to any member at his request, on payment of ten cents or such less sum as the company may direct. (4) If the company makes default in transmitting the copy of a special or extraordinary resolution to the Registrar, it shall be guilty of an offence and liable on conviction to a fine not exceeding four emalangeni for every day during which the default continues. (5) If a company makes default, in embodying or annexing to a copy of its articles or in transmitting to a member when required by this section a copy of a special resolution, it shall be guilty of an offence and liable on conviction to a fine not exceeding two emalangeni for each copy in respect of which default was made. (6) Every director, manager, secretary, or other officer of the company who knowingly and wilfully authorises or permits any default by the company in complying with the requirements of this section shall be guilty of an offence and liable on conviction to the like penalty as is imposed by this section on the company for that default.

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Minutes of proceedings of meetings and directors.

69. (1) Every company shall cause minutes of all proceedings of general meetings and (where there are directors or managers) of its directors or managers to be entered in books kept for that purpose. (2) Any such minute, if purporting to be signed by the chairman of a meeting at which the proceedings were had, or by the chairman of the next succeeding meeting, shall be evidence of the proceedings. (3) Until the contrary is provided every general meeting of the company or meeting of directors or managers in respect of proceedings whereof minutes have been so made shall be deemed to have been duly held and convened, and all proceedings had thereat to have been duly had.

APPOINTMENT, QUALIFICATION, ETC. OF DIRECTORS

Number of directors and liability of subscribers.

69A. (1) Every company, other than a private company shall have at least two directors and every private company shall have at least one director. (2) Every subscriber to a memorandum of association shall, until directors are appointed, be deemed to be a director of the company and be liable to all the duties and obligations of a director. (Added P.14/1964.)

Restrictions of appointment or advertisement of director.

70. (1) A person shall not be capable of being appointed director of a company by the articles, and shall not be named as a director or proposed director of a company in any prospectus issued by or on behalf of a company, or in relation to an intended company or in any statement in lieu of prospectus lodged by or on behalf of a company, unless, before the registration of the articles or the publication of the prospectus, or the lodging of the statement in lieu of prospectus (as the case may be) he has by himself or by his agent authorised in writing — (a) signed and lodged with the Registrar a consent in writing to act as such director; and (b) either signed the memorandum of association for a number of shares not less than his qualification (if any), or signed and lodged with the Registrar a contract in writing to take from the company and pay cash for his qualification shares (if any). (2) On the application for registration of the memorandum and articles of a company the applicant shall deliver to the Registrar a list of the persons who have consented to be directors of the company, and if this list contains the name of any person who has not so consented, the applicant and every person who knowingly and wilfully authorised or permitted the insertion in the list of the name of a person who has not so consented, shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred emalangeni. (3) This section shall not apply to a private company nor to a prospectus issued by or on behalf of a company after the expiration of one year from the date at which the company is entitled to commence business.

Qualification of director.

71. (1) Without prejudice to the restrictions imposed by the last preceding section, it shall be the duty of every director who is by the articles required to hold a specified share qualification, and who is not already qualified to obtain his qualification within two months after his appointment, or such shorter time as may be fixed by the articles. (2) The office or director of a company shall be vacated if the director does not within two months from the date of his appointment, or within such shorter time as may be fixed by the articles, obtain his qualification, or if after the expiration of such period or shorter time he ceases at any time to hold his qualification; and a person vacating office under this section shall be incapable of being reappointed director of the company until he has obtained his qualification. (3) If after the expiration of the said period or shorter time any unqualified person acts as a director of the company he shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day between the expiration of the said period or shorter time and the last day on which it is proved that he acted as a director.

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Validity of acts of director.

72. The acts of a director or manager shall be valid notwithstanding any defect that may afterwards be discovered in his appointment or qualification.

List of directors to be sent to Registrar.

73. (1) Every company shall keep at its registered office a register containing the names and addresses and the occupations of its directors or managers, and send to the Registrar a copy thereof, and from time to time notify to the Registrar any change among its directors or managers. (2) If default is made in compliance with this section, the company shall be guilty of an offence and be liable to a fine not exceeding ten emalangeni for every day during which the default continues; and every director, manager, secretary, or other officer of the company who knowingly and wilfully authorises or permits the default shall be guilty of an offence and liable on conviction to the like penalty.

CONTRACTS, ETC.

Form of contracts.

74. (1) Contracts on behalf of a company may be made as follows — (a) Any contract which if made between private persons would be by law required to be in writing, signed by the parties thereto or by their agents duly authorised in writing may be made on behalf of the company in writing signed by any person duly authorised thereto in writing by two directors acting intra vires, or, if there be only one director, by the director acting intra vires, and the contract may in the same manner be varied or discharged. (b) Any contract which if made between private persons would by law be valid though made verbally only and not reduced to writing, may be made verbally on behalf of the company by any person acting under its authority, expressed or implied and may in the same manner be varied or discharged. (2) All contracts made in accordance with this section shall be effectual in law, and shall bind the company and its successors and all other parties thereto, their heirs or legal representatives, as the case may be.

Promissory notes and bills of exchange.

75. (1) A bill of exchange or promissory note shall be deemed to have been made, accepted, or endorsed on behalf of a company if made, accepted, or endorsed in the name of, or by or on behalf or on account of, the company by any person acting under its authority. (2) All documents, other than the documents mentioned in this section and section 74, shall, if executed on behalf of a company, be signed as described in section 74 unless the articles, otherwise provide.

Execution of deeds abroad.

76. A company may, by writing under the hands of two of its directors, or, if there be only one director, under the hand of that director and of the secretary, empower any person, either generally or in respect of any specified matters, as its agent, to execute deeds on its behalf in any foreign country; and every deed signed by such agent, on behalf of the company, shall bind the company.

Power to companies to have an official seal for use in foreign countries.

77. (1) Any company which has a common seal and whose objects require or comprise the transaction of business in foreign countries may, if authorised by its articles, have for use in any foreign country an official seal, which shall be a facsimile of the common seal of the company, with the addition on its face of the name of the foreign country where it is to be used.

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(2) A company having such an official seal may, by writing under its common seal, authorise any person appointed for the purpose in any foreign country, to affix the same to any deed or other document to which the company is party in that foreign country. (3) The authority of any such agent shall, as between the company and any person dealing with the agent continue during the period (if any) mentioned in the instrument conferring the authority, or if no period is there mentioned, then until notice of the revocation or determination of the agent’s authority has been given to the person dealing with him. (4) The person affixing any such official seal shall, by writing under his hand, on the deed or other document to which the seal is affixed, certify the date and the place of affixing the same. (5) A deed or other document to which such an official seal is duly affixed shall bind the company.

PROSPECTUS

Lodging of prospectus with Registrar.

78. (1) Every prospectus issued by or on behalf or a company or in relation to any intended company shall be dated, and that date shall, unless the contrary be proved, be taken as the date of publication of the prospectus. (2) A copy of every such prospectus signed by every person who is named therein as a director or proposed director of the company, or by his agent authorised in writing, shall be lodged for registration with the Registrar on or before the date of publication of the prospectus, and no such prospectus shall be issued until a copy thereof has been so lodged for registration. (3) The Registrar shall not register any prospectus unless it is dated and the copy thereof signed in manner required by this section. (4) Every prospectus shall state on the face of it that a copy has been lodged for registration as required by this section. (5) If a prospectus is issued without a copy thereof being so lodged, the company, and every person who is knowingly a party to the issue of the prospectus, shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day from the date of the issue of the prospectus until a copy thereof is so lodged.

Specific requirements as to particulars of prospectus.

79. (1) Every prospectus issued by or on behalf of a company, or by or on behalf of any person who is or has been engaged or interested in the formation of the company, shall state — (a) the contents of the memorandum, with the names, occupations, and addresses of the signatories, and the number of shares subscribed for by them respectively; and the number of vendors’, promotors’, founders’ management, deferred, or other classes of shares (if any) and the nature and extent of the interest of the holders in the property and profits of the company; and (b) the number of shares (if any) fixed by the articles as the qualification of a director, and any provision in the articles as to the remuneration of the directors; and (c) the names, occupations, and addresses of the directors or proposed directors; and (d) the minimum subscription on which the directors may proceed to allotment, and the amount payable on application and allotment on each share; and in the case of a second or subsequent offer of shares, the amount offered for subscription on each previous allotment made within the two preceding years, and the amount actually allotted, and the amount (if any) paid on the shares, so allotted; and (e) the number and amount of shares and debentures which within the two preceding years have been issued, or agreed to be issued, as fully or partly paid up otherwise than in cash, and in the latter case the extent to which they are so paid up, and in either case the consideration for which such shares or debentures have been issued or are proposed or intended to be issued; and (f) the names and addresses of the vendors of any property purchased or acquired by the company, or proposed so to be purchased or acquired, which is to be paid for wholly or partly out of the proceeds of the issue offered for subscription by the prospectus, or the purchase or acquisition of which has not been completed 558

at the date of issue of the prospectus, and the amount payable in cash, shares, or debentures, to the vendor, and where there is more then one separate vendor, or the company is a sub-purchaser, the amount so payable to each vendor: Provided that where the vendors or any of them are a partnership the members of the partnership shall not be treated as separate vendors; and (g) the amount (if any) paid or payable as purchase money in cash, shares, or debentures, for any such property as aforesaid, specifying the amount (if any) payable for goodwill; and (h) the amount (if any) paid within the two preceding years, or payable, as commission for subscribing or agreeing to subscribe or procuring or agreeing to procure subscriptions, for any shares in, or debentures of the company or the rate of any such commission: Provided that it shall not be necessary to state the commission payable to sub-underwriters; and (i) the amount or estimated amount of preliminary expenses; and (j) the amount paid within the two preceding years or intended to be paid to any promoter, and the consideration of any such payment; and (k) the dates of and parties to every material contract, and a reasonable time and place at which any material contract or a copy thereof may be inspected: Provided that this requirement shall not apply to a contract entered into in the ordinary course of the business carried on or intended to be carried on by the company, or to an contract entered into more than two years before the date of issue of the prospectus; and (l) the names and addresses of the auditors of the company; and (m) full particulars of the nature and extent of the interest (if any) of every director in the promotion of, or in the property proposed to be acquired by the company, or where the interest of a director consists in being a member of a partnership, the nature and extent of the interest of the partnership, with a statement of all sums paid or agreed to be paid to him or to the partnership in cash or shares or otherwise by any person, either to induce him to become, or to qualify him as, a director, or otherwise for services rendered by him or by the partnership in connection with the promotion or formation of the company; and (n) where the company is a company having shares of more than one class, the right of voting at meetings of the company conferred on the holders of the several classes of shares respectively. (2) For the purposes of this section, every person shall be deemed to be a vendor who has entered into any contract, absolute or conditional, for the sale of purchase, or for any option of purchase, of any property to be acquired by the company, in any case where — (a) the purchase money is not fully paid at the date of the publication of the prospectus; or (b) the purchase money is to be paid or satisfied wholly or in part out of the proceeds of the issue offered for subscription by the prospectus; or (c) the contract depends for its validity or fulfilment on the result of that issue. (3) Where any property to be acquired by the company is to be taken on lease, this section shall apply as if the expression “vendor” included the lessor, and the expression “purchase money” included the consideration for the lease, and the expression “sub-purchaser” included a sub-lessee. (4) Any condition requiring or binding an applicant for shares or debentures to waive compliance with any requirement of this section, or purporting to affect him with notice of any contract, document, or matter not specifically referred to in the prospectus, shall be void. (5) Where any such prospectus as is mentioned in this section is published as a newspaper advertisement, it shall not be necessary to specify the contents of the memorandum or the signatories thereto, and the number of shares subscribed for by them. (6) In the event of a failure to comply with any of the requirements of this section, a director or other person responsible for the prospectus shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand

559 emalangeni addition to any liability incurred by him civilly for such failure but he shall not incur any liability, civil or criminal, by reason of such failure if he proves that — (a) as regards any matter not disclosed, he was not cognisant thereof; or (b) the failure arose from an honest mistake of fact on his part: Provided that in the event of a failure to comply with the requirements contained in subsection (1)(m) no director or other person shall incur any liability, civil or criminal, in respect of such failure unless it be proved that he had knowledge of the matters not disclosed. (7) This section shall not apply to a circular or notice inviting existing members or debenture holders of the company to subscribe either for shares or for debentures of the company, whether with or without the right to renounce in favour of other persons, but, save as aforesaid, this section shall apply to any prospectus issued on or with reference to the formation of a company or subsequently. (8) The requirements of this section as to the memorandum, and the qualification, remuneration, and interest of directors, the names, occupations, and addresses of directors or proposed directors, and the amount or estimated amount of preliminary expenses, shall not apply in the case of a prospectus issued more than one year after the date at which the company is entitled to commence business. (9) Nothing in this section shall limit or diminish any liability which any person may incur under this Act apart from this section, or under any other statute, or under the common law.

Obligations of companies where no prospectus issued.

80. (1) A company which does not issue a prospectus on or with reference to its formation shall not allot any of its shares or debentures unless before the first allotment of either shares or debentures there has been lodged with the Registrar a statement in lieu of prospectus, signed by every person who is named therein as a director or a proposed director of the company or by his agent authorised in writing, in the form and containing the particulars set forth in the Fourth Schedule to this Act. (2) This section shall not apply to a private company.

Restriction on alteration of terms mentioned in prospectus or statement in lieu of prospectus.

81. A company shall not previously to the statutory meeting vary the terms of a contract referred to in the prospectus or statement in lieu of prospectus, except subject to the approval of the statutory meeting.

Liability for statements in prospectus.

82. (1) Where a prospectus invites persons to subscribe for shares in or debentures of a company, every person who is a director of the company at the time of the issue of the prospectus, and every person who has authorised the naming of him and is named in the prospectus as a director or as having agreed to become a director either immediately or after an interval of time, and every promotor of the company, and every person who has authorised the issue of the prospectus, shall be liable to pay compensation to all persons who subscribe for any share or debentures on the faith of the prospectus for the loss or damage they may have sustained by reason of any untrue statement therein, or in any report or memorandum appearing on the face thereof, or by reference incorporated therein or issued therewith, unless it is proved — (a) with respect to every untrue statement not purporting to be made on the authority of an expert, or of a public official document or statement, that he had reasonable ground to believe, and did up to the time of the allotment of the shares or debentures (as the case may be), believe, that the statement was true; and (b) with respect to every such untrue statement purporting to be a statement by or contained in what purports to be a copy of or extract from a report or valuation of an expert, that it fairly represented the statement, or was a correct and fair copy of or extract from the report or valuation: Provided that the director, person named as director, promotor, or person who authorised the issue of the prospectus, shall be liable to pay compensation as aforesaid if it is proved that he had no reasonable ground to believe that the person making the statement, report, or valuation was competent to make it; and

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(c) with respect to every untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, that it was a correct and fair representation of the statement or copy of or extract from the document; or unless it is proved — (i) that having consented to become a director of the company he withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent; or (ii) that the prospectus was issued without his knowledge or consent and that on becoming aware of its issue he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or (iii) that after the issue of the prospectus and before allotment thereunder, he on becoming aware of any untrue statement therein, withdrew his consent thereto, and gave reasonable public notice of the withdrawal, and of the reason therefor. (2) Where the prospectus contains the name of a person as a director of the company, or as having agreed to become a director thereof, and he has not consented to become a director, or has withdrawn his consent before the issue of the prospectus, and has not authorised or consented to the issue thereof, the directors of the company (except any without whose knowledge or consent the prospectus was issued) and any other person who authorised the issue thereof shall be liable to indemnify the person named as aforesaid against all damages, costs, and expenses to which he may be made liable by reason of his name having been inserted in the prospectus, or in defending himself against any action or legal proceedings brought against him in respect thereof. (3) Every person who by reason of his being a director, or named as a director or as having agreed to become a director, or of his having authorised the issue of the prospectus, becomes liable to make payment under this section, may recover contribution, as in cases of contract, from any other person who, if sued separately, would have been liable to make the same payment, unless the person who has become so liable was, and that other person was not, guilty of fraudulent misrepresentation. (4) For the purposes of this section —

“promoter” means a promoter who was a party to the preparation of the prospectus, or of the portion thereof containing the untrue statement, but does not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company;

“expert” includes an engineer, valuer, accountant, and any other person whose profession gives authority to a statement made by him.

ALLOTMENT

Restrictions as to a allotment.

83. (1) No allotment shall be made at any time of any share capital of a company offered to the public for subscription, unless the following conditions have been complied with, namely — (a) the amount (if any) fixed by the memorandum or articles and named in the prospectus as the minimum subscription upon which the directors may proceed to allotment not being less than seventy-five per cent of the whole amount of the share capital offered for subscription; or (b) if no amount is so fixed and named then the whole amount of the share capital so offered for subscription; has been subscribed, and the sum payable on application for the amount so fixed and named, or for the whole amount offered for subscription, has been paid to and received by the company. (2) The amount so fixed and named and the whole aforesaid shall be reckoned exclusively of any amount payable otherwise than in cash, and is in this Act referred to as the minimum subscription. (3) The amount payable on application on each share shall not be less than ten per cent of the nominal amount of the share.

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(4) The amount paid on application shall be set apart by the directors as a separate fund and shall not be available for the purposes of the company or for the satisfaction of its debts until the minimum subscription has been made up. (5) If the conditions aforesaid have not been complied with on the expiration of forty days after the first issue of the prospectus, all money received from applications for shares shall be forthwith repaid to them without interest, and if any such money is not so repaid within sixty days after the issue of the prospectus, the directors of the company shall be jointly and severally liable to repay that money with interest at the rate of six per centum per annum from the expiration of the sixtieth day: Provided that a director shall not be liable if he proves that the loss of the money was not due to any misconduct or negligence on his part. (6) Any condition requiring or binding any applicant for shares to waive compliance with any requirement of this section shall be void. (7) In the case of the first allotment of share capital payable in cash of a company which does not issue any invitation to the public to subscribe for its shares, no allotment shall be made unless the minimum subscription — (a) the amount (if any) fixed by the memorandum or articles and named in the statement in lieu of prospectus as the minimum subscription upon which the directors may proceed to allotment not being less than seventy- five per cent of the share capital proposed to be issued other than that issued or agreed to be issued as fully or partly paid up otherwise than in cash; or (b) if no amount is so fixed and named, then the whole amount of the share capital other than that issued or agreed to be issued as fully or partly paid up otherwise than in cash; has been subscribed and an amount not less than ten per cent of the nominal amount of each share payable in cash has been paid to and received by the company. (8) Subsection (7) shall not apply to a private company.

Effect of irregular allotment.

84. (1) An allotment made by a company to an applicant in contravention of the provisions of the last preceding section shall be voidable at the instance of the applicant within one month thereafter, and not later, shall be so voidable notwithstanding that the company is in course of being wound up. (2) If any director of a company knowingly contravenes or permits or authorises the contravention of section 83 with respect to allotment, he shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred emalangeni, and shall be further liable to compensate the company and the allottee respectively for any loss, damages, or costs which the company or the allottee may have sustained or incurred thereby: Provided that proceedings to recover any such loss, damages, or costs shall not be commenced after the expiration of two years from the date of the allotment.

Restrictions on commencement of business.

85. (1) A company shall not commence business or exercise any borrowing powers unless — (a) shares held subject to the payment of the whole amount thereof in cash have been allotted to an amount not less in the whole than the minimum subscription; and (b) every director of the company has paid to the company on each of the shares taken or contracted to be taken by him, and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares offered for public subscription, or in the case of a company which does not issue a prospectus inviting the public to subscribe for its shares, on the shares payable in cash; and (c) there has been lodged with the Registrar an affidavit or other solemn declaration made by the secretary or one of the directors that the conditions aforesaid have been complied with; and (d) in the case of a company which does not issue a prospectus there has been lodged with the Registrar a statement in lieu of prospectus.

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(2) The Registrar shall, on the lodging of this affidavit or solemn declaration, certify that the company is entitled to commence business, and that certificate shall be conclusive evidence that the company is so entitled: Provided that in the case of a company which does not issue a prospectus, the Registrar shall not give such a certificate unless a statement in lieu of prospectus has been lodged with him. (3) Any contract made by a company before the date at which it is entitled to commence business shall be provisional only, and shall not be binding on the company until that date, and on that date it shall become binding. (4) Nothing in this section shall prevent the simultaneous offer for subscription or allotment of any shares and debentures or the receipt of any money payable on application for debentures. (5) If any company commences business or exercises borrowing powers in contravention of this section, every person who is responsible for the contraventions shall without prejudice to any other liability, be guilty of an offence and liable on conviction to a fine not exceeding one hundred emalangeni for every day during which the contravention continues. (6) Nothing in this section shall apply to a private company.

Return as to allotments.

86. (1) Whenever a limited company makes any allotment of its shares, the company shall within one month thereafter lodge with the Registrar — (a) a return of the allotments, stating the number and nominal amount of the shares comprised in the allotment, the names and addresses of the allottees, and the amount (if any) paid or due and payable on each share; and (b) in the case of shares allotted as fully or partly paid up otherwise than in cash, a contract in writing constituting the title of the allottee to the allotment, together with any contract of sale, or for services or other consideration in respect of which that allotment was made, and a return stating the number and nominal amount of shares so allotted, the extent to which they are to be treated as paid up, and the consideration for which they have been allotted. (2) Where such a contract is not reduced to writing the company shall, within one month after the allotment, lodge with the Registrar the prescribed particulars of the contract. (3) If default is made in complying with the requirements of this section every director, manager, secretary or other officer of the company who is knowingly a party to the default, shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred emalangeni for every day during which the default continues: Provided that in case of default in lodging with the Registrar within one month after the allotment any document required to be lodged by this section, the company, or any person liable for the default, may apply to the Court for relief, and the Court, if satisfied that the omission to lodge the document was accidental or due to inadvertence or that it is just and equitable to grant relief, may make an order extending the time for the lodging of the document for such period as the Court may think proper.

COMMISSIONS AND DISCOUNTS

Powers to pay certain commissions and prohibition of payment of all other commissions, discounts, etc.

87. (1) A company may pay a commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company if the payment of the commission is authorised by the articles, and the commission paid or agreed to be paid does not exceed the amount or rate so authorised, and if the amount or rate per cent of the commission paid or agreed to be paid is — (a) in the case of shares offered to the public for subscription, disclosed in the prospectus; or (b) in the case of shares not offered to the public for subscription, disclosed in the statement in lieu of prospectus, or in a statement in the prescribed form signed in like manner as a statement in lieu of prospectus, and lodged with the Registrar, and where a circular or notice, not being a prospectus, inviting subscription for the shares is issued, also disclosed in that circular or notice. 563

(2) Save as aforesaid, no company shall apply any of its shares or capital money either directly or indirectly in payment of any commission, discount, or allowance, to any person in consideration of his subscribing or agreeing to subscribe whether absolutely or conditionally for any shares of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company, whether the shares or money be so applied by being added to the purchase money of any property acquired by the company or to the contract price of any work to be executed for the company, or the money be paid out of the nominal purchase money or contract price, or otherwise. (3) Nothing in this section shall affect the power of any company to pay such brokerage as it has heretofore been lawful for a company to pay, and a vendor to, promotor of, or other person who receives payment in money or shares from a company shall have and shall be deemed always to have had power to apply, any part of the money or shares so received in payment of any commission, the payment of which, if made directly by the company, would have been legal under this section.

Statement in balance-sheet as to commissions and discounts.

88. Where a company has paid any sums by way of commission in respect of any shares or debentures, or allowed any sums by way of discount in respect of any debentures, the total amount so paid or allowed or so much thereof as has not been written off, shall be stated in every balance-sheet of the company until the whole amount thereof has been written off.

PAYMENT OF INTEREST OUT OF CAPITAL

Power of company to pay interest out of capital in certain cases.

89. Where any shares of a company are issued for the purpose of raising money to defray the expenses of the construction of works or buildings or the provision of any plant which cannot be made profitable for a lengthened period, the company may pay interest on so much of that share capital as is for the time being paid up for the period and subject to the conditions and restrictions in this section mentioned, and may charge the same to capital as part of the cost of construction of the work or building, or the provision of plant: Provided that — (a) no such payment shall be made unless the same is authorised by the articles or by special resolution; (b) no such payment, whether authorised by the articles or by special resolution, shall be made without the previous sanction of the Minister; (c) before sanctioning any such payment, the Minister may, at the expense of the company, appoint a person to enquire and report to him as to the circumstances of the case, and may, before making the appointment require the company to give satisfactory security for the payment of the costs of the enquiry; (d) the payment shall be made only for such period as may be determined by the Minister; and such period shall in no case extend beyond the close of the half-year next after the half-year during which the works or buildings have been actually completed or the plant provided; (e) the rate of interest shall in no case exceed six per cent per annum or such lower rate as may for the time being be prescribed by the Minister; (f) the payment of the interest shall not operate as a reduction of the amount paid up on the shares in respect of which it is paid; (g) the accounts of the company shall show the share capital on which, and the rate at which, interest has been paid out of capital during the period to which the accounts relate.

CERTIFICATES OF SHARES, ETC.

Limitation of time for issue of certificates.

90. (1) Every company shall, within two months after the allotment of any of its shares, debentures, or debenture stock, and within two months after the registration of the transfer of any such shares, debentures, or debenture stock, complete and

564 have ready for delivery the certificates of all shares, the debentures, and certificates of all debenture stock allotted or transferred, unless the conditions of issue of the shares, debentures, or debenture stock otherwise provide. (2) If default is made in complying with the requirements of this section, the company, and every director, manager, secretary, and other officer of the company who is knowingly a party to the default, shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day during which the default continues.

Company’s register of mortgages.

91. (1) Every company shall keep a register of mortgages and enter therein all mortgages and charges specifically affecting property of the company, giving in each case a short description of the property mortgaged or charged, the amount of the mortgage or charge and (except in case of securities to bearer) the names of the mortgagees or persons entitled to the charge. (2) If any director, manager, secretary, or other officer of the company knowingly or wilfully authorises or permits the omission of any entry required to be made in pursuance of this section, he shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred emalangeni.

Right to inspect company’s register of mortgages.

92. (1) The register of mortgages kept in pursuance of the last preceding section shall be open at all reasonable times to the inspection of the Registrar or any creditor or member of the company without fee, and of any other person on payment of such fee, not exceeding twenty-five cents for each inspection, as the company may be prescribe. (2) If inspection of the said register is refused, any officer of the company refusing inspection, and every director, manager, secretary or other officer of the company authorising or knowingly and wilfully permitting the refusal, shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni, and a further fine not exceeding four emalangeni for every day during which the refusal continues; and in addition the Court may, by order, compel immediate inspection of the said register.

Right of debenture holders to inspect the register of debenture holders and to have copies of trust deed.

93. (1) Every register of holders of debentures of a company shall, except when closed in accordance with the articles, during such period or periods (not exceeding in the whole sixty days in any year) as may be specified in the articles, be opened to the inspection of the registered holder of any such debentures, and of any holder of shares in the company, but subject to such reasonable restrictions as the company may in general meeting impose, so that at least two hours in each day are appointed for inspection, and the company shall furnish to every such holder extracts from the register on payment by such holder of ten cents for every hundred words or fractional part thereof required to be extracted or shall afford him or his duly authorised agent adequate facilities for making such extracts. (2) A copy of any trust deed for securing any issue of debentures shall be transmitted to every holder of any such debentures at his request on payment, in the case of a printed trust deed, of the sum of twenty-five cents, or such less sum as may be prescribed by the company, or where the trust deed has not been printed, on payment of ten cents for every hundred words or fractional part thereof required to be copied. (3) If the inspection, extracts, or facilities be refused, or a copy of a trust deed be refused or not transmitted the company shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni, and to a further fine not exceeding four emalangeni, for every day during which the refusal continues, and every director, manager, secretary, or other officer of the company who knowingly authorises or permits the refusal shall be guilty of an offence and liable on conviction to a like penalty.

DEBENTURES

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Power to re-issue redeemed debentures in certain cases.

94. (1) Where a company has redeemed any debentures previously issued, the company, unless the articles or the conditions of issue expressly otherwise provide, or unless the debentures have been redeemed in pursuance of any obligation on the company so to do (not being an obligation enforceable only by the person to whom the redeemed debentures were issued or his assigns) shall have power to keep the debentures alive from the purposes of re-issue, and where a company has purported to exercise such a power the company shall have power to re-issue the debentures either by re-issuing the same debentures or by issuing other debentures in their place, and upon such a re-issue the person entitled to the debentures shall have the same rights and priorities as if the debentures had not previously been issued. (2) Where with the object of keeping debentures alive for the purpose of re-issue, they have been transferred to a nominee of the company, a transfer from that nominee shall be deemed to be a re-issue for the purposes of this section. (3) Where a company has deposited any of its debentures to secure advances from time to time on current account or otherwise the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit whilst the debentures remained so deposited. (4) Nothing in this section shall prejudice any power to issue debentures in the place of any debentures paid off or otherwise satisfied or extinguished reserved to a company by its debentures or securities for the same.

Specific performance of contract to subscribe for debentures.

95. A contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance.

INSPECTION AND AUDIT

Investigation of affairs of company by inspectors appointed by Minister.

96. (1) The Minister may appoint one or more inspectors to investigate the affairs of any company and to report thereon in such manner as he may direct — (a) in the case of a company having a share capital, on the application of members holding not less than one- tenth of the shares issued; (b) in the case of a company not having a share capital, on the application of not less than one-fifth in number of the persons on the company’s register of members. (2) The application shall be supported by such evidence as the Minister may require for the purpose of showing that the applicants have good reason for, and not actuated by malicious motives in requiring the investigation, and the Minister may, before appointing an inspector require the applicants to give satisfactory security for payment of the costs of the investigation. (3) It shall be the duty of all officers and agents of the company to produce to the inspectors all books and documents in their custody or power. (4) An inspector may examine on oath the officers and agents of the company in relation to its business, and may administer an oath accordingly. (5) If any officer or agent refuses to produce any book or document which, under this section, it is his duty to produce, or to answer any question relating to the affairs of the company, notwithstanding that the answer may tend to incriminate him, he shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni in respect of each offence. (6) On the conclusion of the investigation the inspectors shall report their opinion to the Minister, who shall cause a copy of the report to be transmitted to the registered office of the company, and at the request of the applicants for the investigation shall cause a further copy to be delivered to such applicants, and such report shall be written or printed, as the Minister directs. (7) All expenses of and incidental to the investigation shall be defrayed by the applicants unless the Minister orders the same to be paid by the company.

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Power of company to appoint inspectors.

97. (1) A company may by special resolution appoint inspectors to investigate its affairs. (2) Inspectors so appointed shall have the same powers and duties as inspectors appointed by the Minister, except that instead of reporting to him, they shall report in such manner and to such persons as the company in general meeting may direct. (3) Officers and agents of the company shall incur the like penalties, in the case of refusal to produce any book or document required to be produced to inspectors so appointed, or to answer any question, as they would have incurred if the inspectors had been appointed by the Minister.

Report of inspectors to be evidence.

98. A copy of the report of any inspectors appointed under this Act shall be admissible in any legal proceeding as evidence of the opinion of the inspectors in relation to any matter contained in the report.

Appointment and remuneration of auditors.

99. (1) Every company shall, at each annual general meeting appoint an auditor or auditors to hold office until the next annual general meeting. (2) If an appointment of auditors is not made at an annual general meeting, the Minister may, on the application of any member of the company, appoint an auditor of the company for the current year, and fix the remuneration to be paid to him by the company for his services. (3) No director, manager, secretary or other officer of the company shall be capable of being appointed auditor of the company. (4) A person, other than a retiring auditor, shall not be capable of being appointed auditor at an annual general meeting unless notice of an intention to nominate that person to the office of auditor has been given by a shareholder to the company not less than fourteen days before the annual general meeting, and the company shall send a copy of any such notice to the retiring auditor, and shall give notice thereof to the shareholders, either by advertisement or in any other mode allowed by the articles, not less than seven days before the annual general meeting: Provided that if, after notice of intention to nominate an auditor has been so given, an annual general meeting is called for a date fourteen days or less after the notice has been given, the notice, though not given within the time required by this subsection, shall be deemed to have been properly given for the purposes thereof, and the notice to be sent or given by the company may, instead of being sent or given within the time required by this subsection, be sent or given at the same time as the notice of the annual general meeting. (5) The first auditor or auditors of the company shall be appointed by the directors before the statutory meeting, and shall hold office until the first annual general meeting, unless previously removed by a resolution of the shareholders in general meeting, in which case the shareholders at that meeting shall appoint auditors. (6) The directors of a company may fill any casual vacancy in the office of auditor but while any such vacancy continues the surviving or continuing auditor or auditors may act. (7) The remuneration of the auditors of a company shall be fixed by the company in general meeting, except that the remuneration of any auditors appointed before the statutory meeting, or to fill any casual vacancy, may be fixed by the directors.

Powers and duties of auditors.

100. (1) Every auditor of a company shall have a right of access at all times to the books and accounts and vouchers of the company, and shall be entitled to require from the directors and officers of the company such information and explanation as may be necessary for the performance of the duties of the auditors. (2) The auditors shall make to the shareholders on the accounts examined by them, and on every balance-sheet laid before the company in general meeting during their tenure of office and the report shall state — (a) whether or not they have obtained all the information and explanations they have required; and

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(b) whether, in their opinion, the balance-sheet referred to in the report is properly drawn up so as to exhibit a true and correct view of the state of the company’s affairs according to the best of their information and the explanations given to them, and as shown by the books of the company. (3) The balance-sheet shall be signed on behalf of the board by two of the directors of the company or, if there is only one director, by that director, and the auditor’s report shall be attached to the balance-sheet, or there shall be inserted at the foot of the balance-sheet a reference to the report and the report shall be read before the company in general meeting, and shall be open to inspection by any shareholder. Any shareholder, shall be entitled to be furnished with a copy of the balance-sheet and auditors’ report at a charge not exceeding ten cents for every hundred words. (4) If any copy of a balance-sheet which has not been signed as required by this section is issued, circulated, or published, or if any copy of a balance-sheet is issued, circulated, or published without having a copy of the auditor’s report attached thereto or containing such reference to that report as is required by this section, the company, and every director, manager, secretary, or other officer who is knowingly a party to the default shall be liable to a fine not exceeding one hundred emalangeni.

Rights of preference shareholders and debenture holders as to receipt and inspection of reports.

101. (1) Holders of preference shares and debentures of a company shall have the same right to receive and inspect the balance-sheet of the company and the reports of the auditors and other reports as are possessed by the holders of ordinary shares in the company. (2) This section shall not apply to a private company.

CARRYING ON BUSINESS WITH LESS THAN THE LEGAL MINIMUM NUMBER OF MEMBERS

Prohibition of carrying on business with fewer than seven or in the case of a private company, two members.

102. If at any time the number of members of a company is reduced, in the case of a private company, below two, or, in the case of any other company, below seven, and it carries on business for more than six months while the number is so reduced every person who is a member of the company during the time that it so carries on business after those six months, and is cognisant of the fact that it is carrying on business with fewer than two members, or seven members (as the case may be), shall be severally liable for the payment of the whole debts of the company contracted during that time, and may be sued for the same, without any other member being joined in the action.

ARBITRATIONS

Arbitration between companies and others.

103. (1) A company may, by writing under the hands of two of its directors, or, if there be only one director, under the hand of that director, agree to refer and may refer to arbitration in accordance with the Arbitration Act, No. 24 of 1904, any existing or future difference between itself and any other company or person. (2) Companies parties to the arbitration may delegate to the arbitrator power to settle any terms or to determine any matter capable of being lawfully settled or determined by the companies themselves, or by their directors or other managing body. (3) All the provisions of the said Act, shall apply to arbitrations between companies and persons in pursuance of this Act.

POWER TO COMPROMISE

Power to compromise with creditors and members.

104. (1) Where any compromise or arrangement is proposed between a company and its creditors or any class of them, or between a company and its members or any class of them, the Court may, on the application of the company or any creditor or member of the company, or, in the case of company being wound up, of the liquidator, order a meeting of the creditors or

568 class of creditors, or of the members of the company or class of members (as the case may be), to be summoned in such manner as the Court directs. (2) If a majority in number representing three-fourths in value of the creditors or class of creditors, or members, or class of members (as the case may be), present either in person or by proxy at the meeting agree to any compromise or arrangement the compromise or arrangement shall, if sanctioned by the Court be binding on all the creditors or the class of creditors, or on the members or class of members (as the case may be) and also on the company, or in the case of a company in course of being wound up, on the liquidator and contributories of the company.

PRIVATE COMPANY BECOMING A PUBLIC COMPANY

Mode in which private company may become a public company.

105. A private company may, subject to anything contained in the memorandum or articles, by passing a special resolution and lodging with the Registrar such a statement in lieu of prospectus, as the company, if a public company would have had to lodge before allotting any of its shares or debentures together with any such affidavit or other solemn declaration as the company, if a public company, would have had to lodge before commencing business, turn itself into a public company.

PART IV

WINDING-UP

PRELIMINARY

Modes of winding-up.

106. (1) The winding-up of a company may be either — (i) by the Court; or (ii) voluntary; or (iii) subject to the supervision of the Court. (2) The provisions of this Act with respect to winding-up apply, unless the contrary appears, to the winding-up of a company in any of those modes.

CONTRIBUTORIES

Liability as contributories of present and past members.

107. (1) In the event of a company being wound up, every present and past member shall, subject to the provisions of this section, be liable to contribute to the assets of the company to an amount sufficient for payment of its debts and liabilities and the costs, charges, and expenses of the winding-up and for the adjustment of the rights of the contributories among themselves, with the qualifications following: (a) A past member shall not be liable to contribute if he has ceased to be a member for a period of one year or upwards before the commencement of the winding-up. (b) A past member shall not be liable to contribute in respect of any debt or liability of the company contracted after he has ceased to be a member. (c) A past member shall not be liable to contribute unless it appears to the Court that the present members are unable to satisfy the contributions required to be made by them in pursuance of this Act. (d) In the case of a limited company, no contribution shall be required from any member exceeding the amount (if any) unpaid on the shares in respect of which he is liable as a present or past member. (e) Nothing in this Act shall invalidate any provision contained in any policy of insurance or other contract, whereby the liability of individual members on the policy or contract is restricted, or whereby the funds of the company are alone made liable in respect of the policy or contract.

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(f) A sum due to any member of a company in his character of a member, by way of dividends, profits, or otherwise, shall not be deemed to be a debt of the company, payable to that member in a case of competition between himself and any other creditor not a member of the company; but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories amongst themselves. (2) In the winding-up of a limited company, any director or manager, whether past or present, whose liability is, in pursuance of this Act, unlimited shall, in addition to his liability (if any) to contribute as an ordinary member, be liable to make a further contribution as if he were at the commencement of the winding-up a member of an unlimited company: Provided that — (a) a past director or manager shall not be liable to make such further contribution if he has ceased to hold office for a year or upwards before the commencement of the winding-up; (b) a past director or manager shall not be liable to make such further contribution in respect of any deft or liability of the company contracted after he ceased to hold office; (c) subject to the articles of the company, a director or manager shall not be liable to make such further contribution unless the Court deems it necessary to require that contribution in order to satisfy the debts and liabilities of the company, and the costs, charges, and expenses of the winding-up.

Meaning of “contributory”.

108. The term “contributory” shall mean every person liable to contribute to the assets of a company in the event of its being wound up, and in all proceedings for determining and in all proceedings prior to the final determination of the persons who are to be deemed contributories, shall include any person alleged to be a contributory.

Nature of liability of contributory.

109. The liability of a contributory shall create a debt accruing due from him at the time when his liability commenced, but payable at the times when calls are made for enforcing the liability.

Contributories in case of death.

110. If a contributory dies before or after he has been placed on the list of contributories, his executors or his heirs or legatees shall be liable in a due course of administration to contribute to the assets of the company in discharge of his liability and shall be contributories accordingly, the liability of the legatees or heirs, if the estate has passed into their hands, being assessed rateably to the extent of the legacies or inheritances (as the case may be) severally received by them.

Contributories in case of insolvency.

111. If a contributory becomes insolvent either before or after he has been placed on the list of contributories, then — (a) his trustee in insolvency shall represent him for all the purposes of the winding-up, and shall be a contributory accordingly; and (b) there may be proved against the estate of the insolvent the estimated value of his liability to future calls, as well as calls already made.

WINDING-UP BY COURT

Circumstances in which the company may be wound up by Court.

112. A company may be wound up by the Court if — (a) it has by special resolution resolved that the company be wound up by the Court; (b) default is made in lodging the statutory report or in holding the statutory meeting; (c) it does not commence its business within a year from its incorporation, or suspends its business for a whole year;

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(d) the number of members is reduced, in the case of a private company below two, or, in the case of any other company, below seven; (e) seventy-five per cent of the paid-up share capital of the company has been lost, or has become useless for the business of the company; (f) it is unable to pay its debts; (g) the Court is of opinion that it is just and equitable that the company should be wound up.

Company when deemed unable to pay its debts.

113. A company shall be deemed to be unable to pay its debts — (a) if a creditor, by cession or otherwise, to whom the company is indebted in a sum exceeding one hundred emalangeni then due, has served on the company, by leaving it at its registered office, a demand requiring the company to pay the sum so due, and the company has for three weeks thereafter neglected to pay the sum, or to secure or to compound for it to the reasonable satisfaction of the creditor; or (b) if execution or other process issued on a judgment, decree, or order of any court of law in favour of a creditor of the company is returned by the sheriff or messenger with the endorsement that he has not found sufficient assets to satisfy the judgement, decree, or order, or that any assets found did not, upon sale, satisfy the execution or other process; or (c) if it is provided to the satisfaction of the Court that the company is unable to pay its debts, and in determining whether a company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company.

Application for winding-up a company.

114. (1) An application to the Court for the winding-up of a company shall be by petition, presented (subject to the provisions of this section) by the company, or by any creditor or creditors (including any contingent or prospective creditor or creditors), contributory or contributories, or by all or any of those parties, together or separately: Provided that — (a) a contributory shall not be entitled to present a petition for winding-up a company, unless — (i) the number of members is reduced in the case of a private company, below two, or in the case of any other company, below seven; or (ii) the shares in respect of which he is a contributory, or some of them either were originally allotted to him or have been held by him, and registered in his name for at least six months during the eighteen months before the commencement of the winding-up, or have developed upon him through the death of a former holder; and (b) a petition for winding-up a company on the ground of default in lodging the statutory report or in holding the statutory meeting shall not be presented by any person except a shareholder, and not before the expiration of fourteen days after the last day on which the meeting ought to have been held; and (c) the Court shall not give a hearing to a petition for winding-up a company by a contingent or prospective creditor until such security for costs has been given as the Court thinks reasonable and until a prima facie case for winding-up has been established to the satisfaction of the Court. (2) Where a company is being wound up voluntarily or subject to supervision, a petition may be presented by the Master, or by any other person authorised in that behalf under the other provisions of this section, but the Court shall not make a winding-up order on the petition unless it is satisfied that the voluntary winding-up subject to supervision cannot be continued with due regard to the interests of the creditors or contributories.

Effects of winding-up order.

115. An order for winding-up a company shall operate in favour of all the creditors and of all the contributories of the company as if made on the joint petition of a creditor and of a contributory.

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Commencement of winding-up by Court.

116. A winding-up of a company by the Court shall be deemed to commence at the time of the presentation of the petition for the winding-up.

Court may stay or restrain proceedings against the company.

117. At any time after the presentation of a petition for winding-up, and before a winding-up order has been made, the company, or any creditor or contributory, may — (a) where any action or proceeding is pending in any court of law in Swaziland, apply to such court for a stay of proceedings therein; and (b) where any other action or proceeding is pending against the company, apply to the Court having jurisdiction to wind-up the company to restrain further proceedings in the action or proceeding; and the Court to which application is so made may, as the case may be, stay or restrain the proceedings accordingly on such terms as it thinks fit.

Powers of Court on hearing petition.

118. (1) On hearing the petition the Court may dismiss it with or without costs, or adjourn the hearing conditionally or unconditionally, or make any interim order, or any other order that it deems just, but the Court shall not refuse to make a winding-up order on the ground only that the assets of the company have been mortgaged to an amount equal to or in excess of those assets, or that the company has no assets. (2) When a petition is presented on the ground of default in lodging the statutory report or in holding the statutory meeting the Court may order the costs to be paid by any persons who, in the opinion of the Court, are responsible for the default.

Actions stayed on winding-up order.

119. When a winding-up order has been made, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court, and subject to such terms as the Court may impose.

Copy of order to be transmitted to Registrar and other officers.

120. (1) On the presentation of the petition, written notice thereof, and on the making of a winding-up order, a copy thereof shall forthwith be transmitted by the Registrar of the Court to which the petition is presented or of the Court which made the order, to the Registrar, the Master, the Registrar of Deeds, and every other officer charged with the duty of registering title to immovable property or mining title. (2) The Registrar upon receipt of such notice or copy shall make a minute thereof in his books, relating to the company. (3) The Master upon receipt of such copy shall as soon as may be thereafter advertise the terms thereof in the Gazette. (4) The Registrar of Deeds, and every other registering officer aforesaid upon receipt of such notice or copy shall make a minute thereof in his register and shall transmit to the Master as soon as may be a return of any immovable property or ground held under mining title (as the case may be) which is registered in that register in the name of the company.

Power of Court to stay winding-up.

121. The Court may at any time after an order for winding-up, on the application of any creditor or contributory, and on proof to the satisfaction of the Court that all proceedings in relation to the winding-up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the Court deems fit.

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Court may have regard to wishes of creditors or contributories.

122. The Court may, as to all matters relating to a winding-up, have regard to the wishes of the creditors or contributories as proved to it by any sufficient evidence.

MASTER OF THE COURT

Statement of company’s affairs to Master.

123. (1) Where the Court has made a winding-up order, there shall be made out and submitted to the Master a statement as to the affairs of the company in the prescribed form, verified by affidavit, and showing the particulars of its assets, debts, and liabilities, the names, residences, and occupations of its creditors, the securities held by them respectively, the dates when the securities were respectively given, and such further or other information as may be prescribed or as the Master may require, and a duplicate of such statement shall be lodged with the liquidator. (2) The statement shall be submitted and verified by one or more of the persons who are at the time of the winding- up order the directors and by the person who is at that time the secretary or other chief officer of the company, or by such of the persons being or having been directors or officers of the company or having taken part in the formation of the company at any time within one year before the winding-up order, as the Master, subject to the direction of the Court, may require to submit and verify the same. (3) The statement shall be submitted within fourteen days from the date of the order, or within such extended time as the Master or the Court may for special reasons appoint. (4) Any person making or concurring in making the statement and affidavit required by this section shall be allowed, and shall be paid by the Master out of the assets of the company, such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the Master may consider reasonable, subject to an appeal to the Court. (5) If any person, without reasonable excuse, makes default in complying with the requirements of this section, he shall be guilty of an offence and liable on conviction to a fine not exceeding twenty emalangeni for every day during which the default continues. (6) Any person stating himself in writing to be a creditor or contributory of the company shall be entitled by himself or by his agent at all reasonable times, on payment of the prescribed fee to inspect the statement submitted in pursuance of this section, and to a copy thereof or extract therefrom. (7) Any person untruthfully so stating himself to be a creditor or contributory shall be guilty of a contempt of court and be punishable accordingly on the application of the liquidator or of the Master.

Report by Master.

124. (1) Where the Court has made a winding-up order, the Master shall, as soon as practicable after receipt of the statement of the company’s affairs, submit a preliminary report to the Court — (a) as to the amount of the capital issued, subscribed, and paid up, and the estimated amount of assets and liabilities; and (b) if the company has failed, as to the causes of the failure; and (c) whether in his opinion further enquiry is desirable as to any matter relating to the promotion, formation, or failure of the company, or the conduct of the business thereof. (2) The Master may also, if he thinks fit, make a further report, or further reports, stating the manner in which the company was formed and whether in his opinion any fraud has been committed by any person in its promotion or formation, or by any director or other officer of the company in relation to the company since the formation thereof, and any other matters which in his opinion it is desirable to bring to the notice of the Court.

LIQUIDATORS

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Appointment, remuneration and title of liquidators.

125. (1) For the purpose of conducting the proceedings in winding-up a company and performing such duties in reference thereto as the Court may impose, the Court may appoint a liquidator or liquidators. (2) The Court may make such appointment provisionally at any time after the presentation of a petition and before the making of an order for winding-up. (3) If a provisional liquidator is appointed before the making of a winding-up order, any fit person may be appointed. (4) On a winding-up order being made all the property of the company shall be deemed to be in the study or control of the Master until a liquidator is appointed and is capable of acting as such. (5) A person shall not be capable of acting as liquidator until he has notified his appointment to the Registrar and found security to the satisfaction of the Master. (6) If more than one liquidator is appointed by the Court, the Court shall declare whether any act by this Act required or authorised to be done by the liquidator is to be done by all or any one or more of the persons appointed. (7) A liquidator appointed by the Court may, with the leave of the Court, resign, or, on cause shown, be removed by the Court. (8) A vacancy in the office of liquidator appointed by the Court shall be filled by the Court, and the property of the company shall be deemed to be in the custody or control of the Master during the vacancy if there is no liquidator remaining. (9) A liquidator shall receive the prescribed fees as remuneration. (10) If any such liquidator shall fail without sufficient excuse to lodge with the Master the liquidation account and plan of distribution hereinafter prescribed, and within the time so prescribed the Master may, subject to a right of appeal by the liquidator to the Court, disallow the whole or any portion of the remuneration which such liquidator, in that capacity, would otherwise have been entitled to receive. (11) A liquidator shall be described by the style of the liquidator of the particular company in respect of which he is appointed, and not by his individual name. (12) The acts of a liquidator shall be valid notwithstanding any defects that may be afterwards discovered in his appointment or qualification.

Custody of company’s property.

126. In a winding-up by the Court the liquidator shall take into his custody, or under his control, all the property, movable and immovable, to which the company is or appears to be entitled.

Powers of liquidator.

127. (1) The liquidator in a winding-up by the Court shall have power with the sanction either of the Court or of the committee of inspection to — (a) bring or defend any action or other legal proceeding of a civil nature and, subject to the Criminal Procedure and Evidence Act, any criminal proceeding, in the name and on behalf of the company; (b) carry on the business of the company so far as may be necessary for the beneficial winding-up thereof; (c) employ an attorney of the Court or other agent to take any proceedings or do any business which the liquidator is unable to take or do himself: Provided that the sanction of the Court shall be obtained before the employment, except in cases of urgency, and in those cases it must be shown that no undue delay took place in obtaining the sanction; (d) sell the movable and immovable property of the company by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels;

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(e) do all acts and to execute in the name and on behalf of the company all deeds, receipts, and other documents, and for that purpose to use the company’s seal, if the company has a common seal and the articles of the company require the documents to be executed under its common seal; (f) prove rank and claim in the insolvency or sequestration of any contributory for any balance against his estate and to receive dividends in the insolvency or sequestration in respect of that balance, as a separate debt due from the insolvent, and rateably with the other separate creditors or in the legal order of their preference; (g) draw, accept, make and endorse any bill of exchange or promissory note in the name and on behalf of the company, with the same effect with respect to the liability of the company as if the bill or note had been drawn, accepted, made or endorsed by or on behalf of the company in the course of its business; (h) raise on the security of the assets of the company any money requisite; (i) apply in his official name for letters of administration to any deceased contributory, and to do in his official name any other act that may be necessary for obtaining payment of any money due from a contributory, or his estate which cannot be conveniently done in the name of the company; and in all such cases the money due shall, for the purpose of enabling the liquidator to take out the letters of administration or to recover the money, be deemed to be due to the liquidator himself; (j) do all such other things as may be necessary for winding-up the affairs of the company and distributing its assets. (2) The liquidator in a winding-up by the Court of an insolvent company shall have the same rights, in respect of leases or agreements for leases entered into by the company, which the trustee of an insolvent estate has under the law for the time being in force relating to insolvency. (3) The exercise by the liquidator in a winding-up by the Court of the powers conferred by this section shall be subject to the control of the Court and any creditor or contributory may apply to the Court with respect to any exercise or proposed exercise of any of those powers. (4) Where a liquidator is provisionally appointed by the Court, the Court may limit and restrict his powers by the order appointing him.

Meetings of creditors and contributories in winding-up.

128. (1) When a winding-up order has been made by Court, the Master shall summon separate meetings of the creditors and contributories of the company for the purpose of — (a) determining the person or persons whose names shall be submitted to the Court in an application to the Court for appointing a liquidator or liquidators; and (b) determining whether or not an application is to be made to the Court for the appointment of a committee of inspection to act with the liquidator, and who are to be the members of the committee if appointed. (2) The Court may make any appointment and order required to give effect to any such determination, and if there is a difference between the determinations of the meeting of the meeting of the creditors and contributories in respect of any of the matters mentioned in the preceding provisions of this section, the Court shall decide the difference and make such order thereon as the Court may think fit. (3) The provisions of the Fifth Schedule to this Act shall, subject to such modifications as may be made therein by rules of Court, apply to any meeting summoned in pursuance of this section.

Liquidator to give information to Master.

129. Every liquidator shall give the Master such information and such access to and facilities for inspecting the books and documents of the company, and generally such aid as may be requisite for enabling that officer to perform his duties under this Act.

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Payments of liquidator in winding-up into bank.

130. (1) Every liquidator of a company which is being wound up by the Court shall forthwith pay the money received by him to a bank named by the Master and the bank shall furnish him with a certificate of receipt of the money so paid: Provided that, if the committee of inspection satisfy the Master that for the purpose of carrying on the business of the company or of obtaining advances, or for any other reason, it is for the advantage of the creditors or contributories that the liquidator should have an account with any other bank, the Master shall, on the application of the committee of inspection, authorise the liquidator to make his payments into and out of such other bank as the committee may select, and thereupon those payments shall be made in the prescribed manner. (2) If any such liquidator at any time retains for more than three days a sum exceeding one hundred emalangeni or such other amount as the Master in any particular case authorises him to retain, then, unless he explains the retention to the satisfaction of the Master, he shall pay interest on the amount so retained in excess at the rate of twenty per cent per annum, and shall be liable to disallowance of all or such part of his remuneration as the Master may think just, and to be removed from his office by the Court, and shall be liable to pay any expenses occasioned by reason of his default. (3) A liquidator of a company which is being wound up by the Court shall not pay any sums received by him as liquidator into his private banking account.

Audit of liquidator’s accounts in winding-up.

131. (1) Every liquidator of a company which is being wound up by the Court shall at such times as may be prescribed but not less than twice in each year during his tenure of office, send to the Master an account of his receipts and payments as liquidator. (2) The account shall be in a prescribed form, shall be made in triplicate and shall be verified by an affidavit or other solemn declaration in the prescribed form. (3) The Master shall cause the account to be audited and for the purpose of the audit the liquidator shall furnish the Master with such vouchers and information as the Master may require, and the Master may at any time require the production of and inspect any books or accounts kept by the liquidator. (4) When the account has been audited one copy thereof shall be filed and kept by the Master, another copy shall be sent to the liquidator, and another copy shall be filed with the Court, and each copy shall be open to the inspection of any creditor, or of any person interested. (5) The liquidator shall cause the account when audited or a summary thereof to be printed, and shall send a copy of the account or summary by post to every creditor and contributory. (6) The cost of any audit, printing or transmission of accounts under this section shall be expenses properly incurred in the winding-up.

Books to be kept by liquidator in winding-up.

132. Every liquidator of a company which is being wound up by the Court shall keep, in manner prescribed, proper books in which he shall cause to be made entries or minutes of proceedings at meetings, and of such other matters as may be prescribed, and any creditors or contributory may, subject to the control of the Court, personally or by his agent inspect any such books.

Obligations of liquidator as to framing liquidation account, etc.

133. The liquidator shall, in a winding-up of a company by the Court, be under the like obligations with regard to the framing and lodging of a liquidation account and a plan of distribution or contribution, as the trustee of an insolvent estate appointed under the law for the time being in force relating to insolvency; and the confirmation of such account and plan of distribution or contribution, and the distribution of all moneys payable thereunder, shall be subject to the provisions of such law: Provided that the Master may give such directions with regard to the advertisement of the account and plan of distribution or contribution, and the period of time during which it shall lie open for inspection, as he shall think fit, having regard to all the circumstances of the case. 576

Procedure on failure of liquidator to lodge liquidation account.

134. As often a liquidator shall fail to lodge with the Master the account mentioned in the last preceding section, the Master, or any person having an interest in the company being wound up, may, at any time after the expiry of six months from the date on which such liquidator was appointed apply to the Court for an order upon the liquidator to show cause why such account has not been lodged: Provided that the Master or the person aforesaid shall, not later than one month before notice of the application is served upon the liquidator, make written demand upon him to lodge his account.

Release of liquidators.

135. (1) When the liquidator of a company which is being wound up by the Court has realised all the property of the company and has distributed a final dividend, if any, to the creditors, and adjusted the rights of the contributories among themselves, and made a final return, if any, to the contributories, the Master shall, on the liquidator’s application, cause a report on his account to be prepared, and, on the liquidators complying with all the requirements of the Master, the Court shall take into consideration the report, and any objection which may be urged by any creditor, or contributory or person interested against the release of the liquidator, and upon consideration of that report and the objection (if any) and of a report made to the Court by the Master, the Court may either grant or withhold the release. (2) Where the release of a liquidator is withheld the Court may, on the application of any creditor, or contributory, or person interested, make such order as it thinks just, charging the liquidator with the consequences of any act or default which he may have done or made contrary to his duty. (3) An order of the Court releasing the liquidator shall discharge the liquidator from all liability in respect of any act done or default made by him in the administration of the affairs of the company, or otherwise in relation to his conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact. (4) Where the liquidator has not previously resigned or been removed his release shall operate as a removal of him from his office.

Exercise and control of liquidator’s powers.

136. (1) Subject to this Act, the liquidator of a company which is being wound up by the Court shall, in the administration of the assets of the company, have regard to any directions that may be given by resolution of the creditors of contributories at any general meeting, or by the committee of inspection, and any directions given by the creditors or contributories at any general meeting shall in case of conflict be deemed to override any directions given by the committee of inspection. (2) The liquidator may, by notice in the Gazette, summon general meetings of the creditors or of the contributories for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors or the contributories (as the case may be), by resolution, either at the meeting appointing the liquidator or otherwise, may direct, or whenever requested in writing to do so by one-tenth in value of the creditors or of the contributories as the case may be. (3) The liquidator may apply to the Court in manner prescribed for directions in relation to any particular matter arising under the winding-up. (4) Subject to this Act, the liquidator shall use his own discretion in the management of the estate and its distribution among the creditors. (5) If any person is aggrieved by any act or decision of the liquidator, that person may apply to the Court, and the Court may confirm, reverse, or modify the act or decision complained of and make such order in the premises as it thinks just.

Control of Master over liquidators.

137. (1) The Master shall take cognisance of the conduct of liquidators of companies which are being wound up by the Court, and if a liquidator does not faithfully perform his duties and duly observe all the requirements imposed on him by statute, rules, or otherwise with respect to the performance of his duties, or, if any complaint is made to the Master by any 577 creditor or contributory in regard thereto, the Master shall enquire into the matter and take such action thereon as he may think expedient. (2) The Master may at any time require any liquidator of a company which is being wound up by the Court to answer any enquiry in relation to any winding-up in which such liquidator is engaged, and may, if he thinks fit, apply to the Court to examine such liquidator or any other person on oath concerning the winding-up. (3) The Master may also direct a local investigation to be made of the books and vouchers of the liquidator. (4) The Court may, upon the application of the Master, order that any costs reasonably incurred by him in carrying out the powers of this section be paid out in the assets of the company or by the liquidator de bonis propriis.

COMMITTEE OF INSPECTION — SPECIAL MANAGER

Committee of inspection.

138. (1) A committee of inspection appointed in pursuance of this Act shall consist of creditors and contributories of the company or persons holding general powers of attorney from creditors or contributories in such proportions as may be agreed on by the meetings of creditors and contributories, or as, in case of difference, may be determined by the Court. (2) The committee shall meet at such times as it may from time to time appoint, and, failing such appointment, at least once a month; and the liquidator or any member of the committee may also call a meeting of the committee as and when he thinks necessary. (3) The committee may act by a majority of its members present at a meeting, but shall not act unless a majority of the committee are present. (4) Any member of the committee may resign by notice in writing signed by him and delivered to the liquidator. (5) If a member of the committee becomes insolvent, or compounds or arranges with his creditors, or is absent from five consecutive meetings of the committee without the leave of those members who together with himself represent the creditors or contributories as the case may be, his office shall thereupon become vacant. (6) Any member of the committee may be removed by an ordinary resolution at a meeting of creditors (if he represents creditors), or of contributories (if he represents contributories) of which seven days’ notice in the Gazette has been given, stating the object of the meeting. (7) On a vacancy occurring in the committee the liquidator shall forthwith summon a meeting of creditors or of contributories, as the case may require, to fill the vacancy, and the meeting may, by resolution, reappoint the same or appoint another creditor or contributory to fill the vacancy. (8) The continuing members of the committee, if not less than two, may act notwithstanding any vacancy in the committee. (9) If there is no committee of inspection, any act or thing or any direction or permission by this Act authorised or required to be done or given by the committee may be done or given by the Master on the application of the liquidator.

Power to appoint special manager.

139. (1) The Master may, if satisfied that the nature of the estate or business of the company, or the interests of the creditors or contributories generally, require the appointment of a special manager of the estate or business of the company apply to the Court to, and the Court may on such application, appoint a special manager thereof to act during such time as the Court may direct, with such powers, including any of the powers of a manager, as may be entrusted to him by the Court. (2) The special manager shall give such security and account in such manner as the Master directs. (3) The special manager shall receive the prescribed fees as remuneration.

ORDINARY POWERS OF COURT

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Settlement of list of contributories and application of assets.

140. (1) As soon as may be after making a winding-up order, the Court shall settle a list of contributories, with power to rectify the register of members in all cases where such rectification is required in pursuance of this Act, and shall cause the assets of the company to be collected, and applied in discharge of it liabilities. (2) In settling the list of contributories, the Court shall distinguish between persons who are contributories in their own right and persons who are contributories as being representatives of or liable for the debts of others.

Power to require delivery of property.

141. The Court may at any time after making a winding-up order, require any contributory for the time being settled on the list of contributories, and any trustee, banker, agent or officer of the company to pay, deliver, convey, surrender, or transfer forthwith, or within such time as the Court directs, to the liquidator, any money, property or books and papers in his hands to which the company is prima facie entitled.

Power to order payment of debts by contributory.

142. (1) The Court may, at any time after making a winding-up order, make an order on any contributory for the time being settled on the list of contributories to pay, in manner directed by the order, any money due from him, or from the estate of the person whom he represents, to the company, exclusive of any money payable by him or the estate by virtue of any call in pursuance of this Act. (2) The Court in making such order may, in the case of an unlimited company allow to the contributory by way of a set-off any money due to him, or to the estate which he represents from the company on any independent dealing or contract with the company but not any money due to him as a member of the company in respect of any dividend or profit; and may, in the case of a limited company, make to any director or manager thereof whose liability is unlimited or to his estate the like allowance. (3) In the case of any company, whether limited or unlimited, when all the creditors are paid in full, any money due on any account whatever to a contributory from the company may be allowed to him by way of set-off against any subsequent call.

Power of Court to make calls.

143. (1) The Court may, at any time after making a winding-up order, and either before or after it has ascertained the sufficiency of the assets of the company, make calls on and order payment thereof by all or any of the contributories for the time being settled on the list of contributories to the extent of their liability, for payment of any money which the Court considers necessary to satisfy the debts and liabilities of the company, and the costs, charges, and expenses of winding-up, and for the adjustment of the rights of the contributories among themselves. (2) In making a call the Court may take into consideration the probability that some of the contributories may partly or wholly fail to pay the call.

Power of Court to order payment into bank.

144. (1) The Court may order any contributory, purchaser, or other person from whom money is due to the company to pay the same into a bank to be named by the Court to the account of the liquidator instead of the liquidator, and such order may be enforced in the same manner as if it had directed payment to the liquidator. (2) All moneys and securities paid or delivered into a bank as aforesaid in the event of a winding-up by the Court shall be subject in all respects to the orders of the Court.

Order on contributory conclusive evidence.

145. (1) An order make by the Court on a contributory shall, subject to any right of appeal, be conclusive evidence that the money (if any) thereby appearing to be due or ordered to be paid is due. (2) All other pertinent matters stated in such order shall be taken prima facie as truly stated as against all persons and in all proceedings whatsoever. 579

Power to exclude creditors not proving in time.

146. The Court may fix a time or times within which creditors of the company are to prove their debts or claims, or to be excluded from the benefit of any distributions made before those debts are proved.

Court to adjust rights of contributories.

147. The Court shall adjust the rights of the contributories among themselves and distribute any surplus among the persons entitled thereto.

Power to order costs.

148. The Court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the assets of the costs, charges, and expenses incurred in the winding-up in such order of priority as the Court thinks just.

Dissolution of company.

149. (1) When the affairs of a company have been completely wound up, the Court shall make an order that the company be dissolved from the date of the order, and the company shall be dissolved accordingly. (2) A copy of the order shall forthwith be transmitted by the Registrar of the Court which made the order to the Registrar, who shall make a minute in his books of the dissolution of the company. (3) A copy of the order shall be transmitted forthwith by the Registrar of the Court which made the order to the Master, to the Registrar of Deeds and to every officer charged with the duty of registering title of immovable property or mining title in Swaziland. (4) The order shall be published by the liquidator in the Gazette and in such newspaper as the Court may direct, within seven days after the making of the order. (5) If the liquidator makes default in complying with any requirements of this section, he shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day during which he is in default.

Delegation to liquidator of certain powers of Court.

150. Rules may be made by the Court for enabling or requiring all or any of the powers and duties conferred and imposed on the Court by this Act, in respect of the matters following, to be exercised or performed by the liquidator as an officer of the Court, and subject to the control of the Court; that is to say, the powers and duties of the Court in respect of — (a) holding and conducting meetings to ascertain the wishes of creditors and contributories; (b) settling lists of contributories and rectifying the register of members where required, and collecting and applying the assets; (c) requiring delivery of property or documents to the liquidator; (d) making calls; (e) fixing a time within which debts and claims must be proved: Provided that the liquidator shall not, without special leave of the Court, rectify the register of members, and shall not make any call without either the special leave of the Court or the sanction of the committee of inspection.

EXTRAORDINARY POWERS OF COURT

Power to summon persons before it, suspected of having property of company.

151. (1) The Court may, after it has made a winding-up order, summon before it any officer of the company or person known or suspected to have in his possession any property of the company or supposed to be indebted to the company, or any person whom the Court deems capable of giving information concerning the trade, dealings, affairs, or property of the company.

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(2) The Court may examine him on oath concerning the same, either by word of mouth or on written interrogatories, and may reduce his answers to writing and require him to sign them and he may be required to answer any question put to him on the examination, notwithstanding that the answer might tend to incriminate him: Providing that any answer given to any such question shall not be used against him in any prosecution other than for perjury or for the offence under his Act of giving false evidence. (3) The Court may require him to produce any books and papers in his custody or power relating to the company; but where he claims any lien on books or papers produced by him the production shall be without prejudice to such lien, and the Court shall have jurisdiction in the winding-up to determine all questions to that lien. (4) If any person so summoned after being tendered a reasonable sum for his expenses, fails to come before the Court at the time appointed, having no lawful impediment (made known to the Court at the time of its sitting and allowed by it) the Court may cause him to be apprehended, and brought before the Court for examination. (5) The Court may order any costs incurred under this section to be paid out of the assets of the company.

Power to order public examination of promoters, directors, etc.

152. (1) When an order has been made for winding-up a company by the Court, and the Master has made a further report under this Act, showing that in his opinion a fraud has been committed by any person in the promotion or formation of the company, or by a director or officer of the company in relation to the company since its formation, the Court may, after consideration of the report, direct that any person who has taken part in the promotion or formation of the company, or has been a director or officer of the company, shall attend before the Court on a day appointed by the Court for that purpose, and be publicly examined as to the promotion or formation, or the conduct of the business of the company, or as to his conduct and dealings as director or officer thereof. (2) The Master may take part in the examination, and for that purpose may, if specially authorised by the Minister in that behalf, employ an attorney with counsel. (3) The liquidator, and any creditor or contributory, may also take part in the examination either personally or by attorney with counsel. (4) The Court may put such questions to the person examined as the Court thinks fit. (5) The person examined shall be examined on oath, and shall answer all such questions as the Court may put or allow to be put to him notwithstanding that any answer may tend to incriminate him. (6) A person ordered to be examined under this section shall at his own cost, before his examination, be furnished with a copy of the Master’s report, and may at his own cost employ an attorney with counsel, who shall be at liberty to put to him such questions as the Court may deem just for the purpose of enabling him to explain or qualify any answers given by him: Provided that if he is, in the opinion of the Court, exculpated from any charges made or suggested against him, the Court may allow him such costs as in its discretion it may think fit. (7) Notes of the examination shall be taken down in writing and shall be read over to or by, and signed by, the person examined and may, save as herein provided, thereafter be used in evidence against him, and shall be open to the inspection of any creditor or contributory at all reasonable times: Provided that any answer given by a person upon examination under this section shall not be used against him in any prosecution other than for perjury or for the offence under this Act of giving false evidence. (8) The Court may, if it thinks fit, adjourn the examination from time to time. (9) An examination under this section may, if the Court so directs, and subject to rules of Court, be held before the Master, or a district officer or other person named or appointed for the purpose by the Court, and the powers of the Court under this section as to the conduct of the examination, but not as to costs, may be exercised by the person before whom the examination is held: Provided that at an examination held before the Master, or a district officer or such other person as aforesaid, an attorney may appear without counsel. (10) The Court may order any costs incurred under this section to be paid out of the assets of the company.

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Power to arrest absconding contributory.

153. The Court, at any time before or taking after making a winding-up order, on proof that there is reason to believe that a contributory is about to quit Swaziland, or otherwise to abscond, or to remove or conceal any property for the purpose of evading payment or calls, or of avoiding examination respecting the affairs of the company may cause the contributory to be arrested, and his books and papers and movable property to be seized, and him and them to be safely kept until such time as the Court may order.

Powers of Court cumulative.

154. Any powers by this Act conferred on the Court shall be deemed to be in addition to and not in restriction of any existing powers of instituting proceedings against any contributory or debtor of the company, or the estate of any contributory or debtor, for the recovery of any call or other sums.

Appeals from order.

155. Subject to rules of Court, an appeal from an order or decision made or given for or in the winding-up of a company by the Court under this Act shall lie in the same manner and subject to the same conditions as an appeal from any order or decision of the Court in cases within its ordinary jurisdiction.

VOLUNTARY WINDING-UP OF COMPANY

Circumstances under which company may be wound up voluntarily.

156. A company may be wound up voluntarily — (a) when the period (if any) for the duration of the company by the articles expires, or the event (if any) occurs, on the occurrence of which the articles provide that the company is to be dissolved, and the company in general meeting has passed a resolution requiring the company to be wound up voluntarily; (b) if the company resolves by special resolution that the company be wound up voluntarily; (c) if the company resolves by extraordinary resolution that it cannot by reason of its liabilities continue its business, and that it is advisable to wind up.

Commencement of voluntary winding-up.

157. A voluntary winding-up shall be deemed to commence at the time of the passing of the resolution authorising the winding-up.

Effect of voluntary winding-up on status of company.

158. When a company is wound up voluntarily the company shall, from the commencement of the winding-up, cease to carry on its business, except in so far as may be required for the beneficial winding-up thereof: Provided that the corporate state and corporate powers of the company shall, notwithstanding anything to the contrary in its articles, continue until it is dissolved.

Notice of resolution to wind up voluntarily.

159. (1) When the company has resolved by special or extraordinary resolution to wind up voluntarily it shall as soon as may be give notice of the resolution by advertisement in the Gazette. (2) Notice in writing of the resolution shall also be given as soon as may be by the company to the Master, to the Registrar of Deeds, and to every officer charged with the duty of registering title to immovable property or mining title in Swaziland. (3) If default is made by a company in complying with the requirements of this section the company, and every director, manager, secretary, or other officer of the company, who knowingly authorised or permitted the default shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day during which the default continues. 582

Consequences of voluntary winding-up.

160. The following consequences shall ensue on the voluntary winding-up of a company — (a) the property of the company shall be applied in satisfaction of its liabilities in the legal order of their preference and subject thereto shall, unless the articles otherwise provide, be distributed amongst the members according to their rights and interests in the company; (b) the company in general meeting shall appoint one or more liquidators for the purpose of winding-up the affairs and distributing the assets of the company, and may fix the remuneration to be paid to him or them; (c) on the appointment of a liquidator all the powers of the directors shall cease, except so far as the company in general meeting, or the liquidator, sanctions the continuance; (d) the liquidator may, without the sanction of the Court, exercise all powers by this Act given to the liquidator in a winding-up by the Court; (e) the liquidator may exercise the powers of the Court under this Act of settling a list of contributories, and of making calls, and shall pay the debts of the company, and adjust the rights of the contributories among themselves; (f) the list of contributories shall be prima facie evidence of the liability of the persons named therein to be contributories; (g) when several liquidators are appointed, every power hereby given may be exercised by such one or more of them as may be determined at the time of their appointment, or in default of such determination, by any number not less than two; (h) if from any cause whatever there is no liquidator acting, the Court may, on the application of a contributory, appoint a liquidator; (i) the Court may, on good cause shown, remove a liquidator and appoint another liquidator.

Notice by liquidator of his appointment.

161. (1) The liquidator in a voluntary winding-up shall, within twenty-one days after his appointment, lodge with the Registrar and with the Master, a notice of his appointment in the prescribed form. (2) If the liquidator fails to comply with the requirements of this section he shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day during which the default continues.

Rights of creditors in a voluntary winding-up.

162. (1) Every liquidator appointed by a company in a voluntary winding-up shall within seven days from his appointment, send notice by post to all persons who appear to him to be creditors of the company, that a meeting of the creditors of the company will be held on a date, not being less than fourteen nor more than twenty-one days after his appointment, and at a place and hour to be specified in the notice, and shall also advertise notice of the meeting once in the Gazette and once at least in two newspapers circulating in Swaziland. (2) At the meeting to be held in pursuance of the provisions of this section the creditors shall determine whether an application shall be made to the Court for the appointment of any person as liquidator in the place of or jointly with the liquidator appointed by the company, or for the appointment of a committee of inspection, and, if the creditors so resolve, an application may be made accordingly to the Court at any time not later than fourteen days after the date of the meeting, by any creditor appointed for the purpose at the meeting. (3) On any such application the Court may make an order either for the removal of the liquidator appointed by the company and for the appointment of some other person as liquidator or for the appointment of some other person to act as liquidator jointly with the liquidator appointed by the company, or for the appointment of a committee of inspection either together with or without any such appointment of a liquidator or such other order as, having regard to the interests of the creditors and contributories of the company, may seem just. (4) No appeal shall lie from any order of the Court upon a application under this section.

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(5) The Court shall make such order as to the costs of the application as it may think fit, and if it is of opinion that, having regard to the interests of the creditors in the liquidation, there were reasonable grounds for the application, may order the costs of the application to be paid out of the assets of the company, notwithstanding that the application is dismissed or otherwise disposed of adversely to the applicant.

Power to fill vacancy in office of liquidator.

163. (1) If a vacancy occurs by death, resignation, or otherwise in the office of liquidator appointed by the company in a voluntary winding-up, the company in general meeting may, subject to any arrangement with its creditors, fill the vacancy. (2) For that purpose a general meeting may be convened by any contributory, or, if there were more liquidators than one, by the continuing liquidator or liquidators. (3) The meeting shall be held in manner prescribed by the articles, or in such manner as may, on application by any contributory or by the continuing liquidator or liquidators, be determined by the Court.

Delegation of authority to appoint liquidators.

164. (1) A company about to be, or in the course of being wound up voluntarily may, by extraordinary resolution, delegate to its creditors or to any committee of them, the power of appointing liquidators or any of them, and of supplying vacancies among the liquidators, or enter into any arrangement with respect to the powers to be exercised by the liquidators, and the manner in which they are to be exercised. (2) Any act done by creditors in pursuance of any such delegated power shall have the same effect as if it had been done by the company.

Arrangements when binding on creditors.

165. (1) Any arrangement entered into between a company about to be, or in the course of being, wound up voluntarily and its creditors, shall, subject to any right of appeal under this section, be binding on the company if sanctioned by an extraordinary resolution, and on the creditors if acceded to by three-fourths in number and value of the creditors. (2) Any creditor or contributory may, within three weeks from the completion of the arrangement, appeal to the Court, against it and the Court may thereupon, as it thinks just, amend, vary, or confirm the arrangement.

Power of liquidators to accept shares, etc. as a consideration for sale of property of company.

166. (1) Where a company is proposed to be, or is being, wound up voluntarily and the whole or part of its business or property is proposed to be transferred or sold to another company, whether registered under this Act or not (in this section called the transferee company) the liquidator of the first-mentioned company (in this section called the transferor company) may, with the sanction of a special resolution of that company, conferring either a general authority on the liquidator or an authority in respect of any particular arrangement, receive in compensation or part compensation for the transfer or sale, shares, policies, or other like interests in the transferee, company, for distribution amongst the members of the transferor company, or may enter into any other arrangement whereby the members of the transferor company may, in lieu of receiving cash, shares, policies, or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the transferee company. (2) Any sale or arrangement in pursuance of this section shall be binding on the members of the transferor company. (3) If any member of the transferor company who did not vote in favour of the special resolution at either of the meetings held for passing and confirming the same, expresses his dissent therefrom in writing addressed to the liquidator, and left at the registered office of the company within seven days after the confirmation of the resolution, he may require the liquidator either to abstain from carrying the resolution into effect or to purchase his interest at a price to be determined by agreement or by arbitration in manner provided by this section. (4) If the liquidator elects to purchase the member’s interest, the purchase money shall be paid before the company is dissolved, and be raised by the liquidator in such manner as may be determined by special resolution. (5) A special resolution shall not be invalid for the purposes of this section by reason that it is passed before or concurrently with a resolution for winding-up the company, or for appointing liquidators, but if an order be made within a

584 year for winding-up the company by or subject to the supervision of the Court, the special resolution shall not be valid unless sanctioned by the Court. (6) For the purposes of an arbitration under this section the provisions of the Arbitration Act, No. 24 of 1904, with respect to settlement of disputes by arbitration shall be incorporated with this Act.

Power to apply to Court.

167. (1) Where a company is being wound up voluntarily, the liquidator or any contributory or creditor of the company may apply to the Court to determine any question arising in the winding-up, or to exercise, as respects the enforcing of calls, or any other matter, all or any of the powers which the Court might exercise if the company were being wound up by the Court. (2) The Court, if satisfied that the determination of the question or the required exercise of power will be just and beneficial, may accede wholly or partially to the application on such terms and conditions as the Court thinks fit, or may make such other order on the application as the Court thinks just.

Power of liquidator to call general meeting.

168. (1) Where a company is being wound up voluntarily, the liquidator may summon general meetings of the company for the purpose of obtaining the sanction of the company by special or extraordinary resolution, or for any other purposes he may think fit. (2) In the event of the winding-up continuing for more than six months, the liquidator shall summon a general meeting of the company at the end of the first six months from the commencement of the winding-up, and of each succeeding period of six months or as soon thereafter as may be convenient and shall lay before the meeting an account of his acts and dealings and of the conduct of the winding-up during the preceding period of six months.

Final meeting and dissolution.

169. (1) In the case of every voluntary winding-up, as soon as the affairs of the company are fully wound up, the liquidator shall make up an account of the winding-up, showing how the winding-up has been conducted and the property of the company has been disposed of; and thereupon shall call a general meeting of the company for the purpose of laying before it the account, and giving any explanation thereof. (2) The meeting shall be called by advertisement in the Gazette specifying the time, place, and object thereof, and published one month at least before the meeting. (3) Within one week after the meeting, the liquidator shall make a return to the Registrar and to the Master of the holding of the meeting and of its date, and in default of so doing shall be liable to a fine not exceeding ten emalangeni for every day during which any such default continues. (4) The Registrar on receiving the return shall forthwith register it and on the expiration of three months from the registration of the return the company shall be deemed to be dissolved: Provided that the Court may, on the application of the liquidator, or of any other person who appears to the Court to be interested make an order deferring the date at which the dissolution of the company is to take effect for such time as the Court thinks fit. (5) It shall be the duty of the person on whose application an order of the Court under this section is made, within seven days after the making of the order, to lodge with the Registrar a certified copy of the order, and if that person fails so to do, he shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day during which the default continues.

Saving of rights of creditors and contributories.

170. The voluntary winding-up of a company shall not bar the right of any creditor or contributory at any time before its dissolution to have it wound up by the Court, if the Court is of opinion, in the case of an application by a creditor, that the rights of the creditor, or, in the case of an application by a contributory, that the rights of the contributory will be prejudiced by a voluntary winding-up.

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Power of Court to adopt proceedings of voluntary winding-up.

171. Where a company is being wound up voluntarily, and an order is made for winding-up by the Court, the Court may, if it thinks fit, by the same or any subsequent order, provide for the adoption of all or any of the proceedings in the voluntary winding-up.

WINDING-UP SUBJECT TO SUPERVISION OF COURT

Power to order winding-up subject to supervision.

172. When a company has by special or extraordinary resolution resolved to wind-up voluntarily, the Court may make an order that the voluntary winding-up shall continue but subject to such supervision of the Court, and with such liberty for creditors, contributories, or others to apply to the Court, and generally on such terms and conditions as the Court thinks just.

Effects of petition for winding-up subject to supervision.

173. A petition for the continuance of a voluntary winding-up subject to the supervision of the Court shall, for the purpose of giving jurisdiction to the Court over actions, be deemed to be a petition for winding-up by the Court.

Court may have regard to wishes of creditors and contributories.

174. The Court may, in deciding between a winding-up by the Court and a winding-up subject to supervision, in the appointment of liquidators, and in all other matters relating to the winding-up subject to supervision, have regard to the wishes of the creditors or contributories as proved to it by any sufficient evidence.

Power of Court to appoint or remove liquidators.

175. (1) When an order is made for a winding-up subject to supervision, the Court may by the same or any subsequent order appoint any additional liquidator. (2) A liquidator appointed by the Court under this section shall have the same powers, be subject to the same obligations, and in all respects stand in the same position as if he had been appointed by the company. (3) The Court may remove any liquidator so appointed by the Court or any liquidator continued under the supervision order, and fill any vacancy occasioned by the removal, or by death or resignation.

Effect of supervision order.

176. (1) Where an order is made for a winding-up subject to supervision, the liquidator may, subject to any restrictions imposed by the Court, exercise all his powers, without the sanction or intervention of the Court, in the same manner as if the company were being wound up voluntarily. (2) A winding-up subject to the supervision of the Court is not a winding-up by the Court for the purpose of the following provisions of this Act, namely, those contained in sections 123, 124, 125 except subsection (10) thereof, 128 to 139 inclusive, 150 and 152, but, save as aforesaid an order for winding-up subject to the supervision shall for all purposes, including the staying of actions and other legal proceedings, the making and enforcement of calls, and the exercise of all other powers be deemed to be an order for winding-up by the Court.

SUPPLEMENTARY PROVISIONS

Costs of winding-up.

177. All costs, charges, and expenses properly incurred in any winding-up of a company, including the remuneration of the liquidator or liquidators, shall, unless the Court otherwise orders be payable out of the assets of the company and in priority to all other claims.

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Avoidance of transfers after commencement of winding-up.

178. (1) In the case of a voluntary winding-up every transfer of shares except transfers made to or with the sanction of the liquidator, and every alteration in the status of the members of the company, made after the commencement of the winding-up, shall be void. (2) In the case of a winding-up by or subject to the supervision of the Court, every disposition of the property (including rights of action) of the company, and every transfer of shares, or alteration in the status of its members, made after the commencement of the winding-up, shall, unless the Court otherwise orders, be void.

Debts of all descriptions to be proved.

179. In every winding-up (subject in the case of insolvent companies to the application in accordance with the provisions of this Act of the law for the time being relating to insolvency) all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as possible, of the value of such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value.

Application of law relating to insolvency in winding-up insolvent companies.

180. In the winding-up of an insolvent company the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and to the debts provable and to the valuation of annuities and future and contingent liabilities as are in force for the time being in force under the law relating to insolvency, with respect to the estates of persons sequestrated; and all persons who in such case would be entitled to prove for and receive dividends out of the assets of the company may come in under the winding-up, and make such claims against the company as they respectively are entitled to by virtue of this section.

Preferential payments in winding-up.

181. (1) In a winding-up there shall be paid in priority to all other debts — (a) all taxes due and payable to the Government; (b) all assessment rates, erf taxes, sanitary, water and other like charges payable to any local authority by the company at any time within twelve months ending the thirtieth day of June next before the date hereinafter mentioned in this section; (c) the wages or salary of any clerk or servant in respect of services rendered to the company during two months next before the date hereinafter mentioned in this section; (d) the wages of any workman or labourer not exceeding one hundred emalangeni whether payable for time or for piecework in respect of services rendered to the company during the two months immediately preceding the said date: Provided that where any labourer or workman has entered into a contract for the payment of a portion of his wages in a lump sum at the end of the period of hiring, he shall have priority in respect of the whole of such sum, or a part thereof, as the Court may decide to be due under the contract proportionate to the time of service up to the said date; (2) The debts described in subsection (1) shall — (a) rank equally between themselves and shall be paid in full, unless the assets of the company are insufficient to meet them, in which case they shall abate in equal proportions; and (b) so far as the assets of the company available for payment of general creditors are insufficient to meet them, have priority over the claims of mortgagees and holders or debentures created by the company, and be paid accordingly out of any property comprised in or subject to the document securing the claims of the mortgagees or debenture holders. (3) Subject to the retention of such sums as may be necessary for the costs, charges and expenses of winding-up, all the debts described in subsection (1) shall be discharged forthwith so far as the assets are sufficient to meet them. (4) The date hereinbefore in this section mentioned is —

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(a) in the case of a company ordered to be wound up compulsorily which had not previously commenced to be wound up voluntarily, the date of the winding-up order; and (b) in any other case the date of the commencement of the winding-up. (5) This section shall apply in the winding-up of every company.

Voidable and undue preferences.

182. (1) Every disposition of its property which would, if made by an individual be deemed in the event of his insolvency to have been void or voidable or an undue preference shall, if made by a company, be deemed, in the event of its being wound up and then insolvent, void or voidable or an undue preference (as the case may be) and the provisions of the law for the time being relating to insolvency shall mutatis mutandis be applied to any such disposition. (2) For the purpose of this section the presentation of a petition for winding-up in the case of a winding-up by or subject to the supervision of the Court, and a resolution for winding-up in the case of a voluntary winding-up, shall be deemed to correspond with the sequestration order in the case of an individual. (3) Any cession or assignment by a company of all its property to trustees for the benefit of all its creditors shall be void to all intents.

Application of law relating to insolvency.

183. In the case of a winding-up of any insolvent company, the provisions of the law for the time being relating to insolvency shall mutatis mutandis be applied in respect of any matter not specially provided for in this Act.

Avoidance of certain attachments, executions, etc.

184. Where any company is being wound up by or subject to the supervision of the Court, any attachment or execution put in force against the estate or effects of the company after the commencement of the winding-up shall be void to all intents.

General scheme of liquidation may be sanctioned.

185. (1) The liquidator may in the case of — (a) a winding-up by the Court, with the sanction either of the Court or of the committee of inspection; (b) any winding-up subject to supervision, with the sanction of the Court; and (c) a voluntary winding-up, with the sanction of an extraordinary resolution of the company; do the things or any of them set out in subsection (2). (2) Subject to subsection (1) the liquidator may — (a) pay any classes of creditors in full; (b) make any compromise or arrangement with creditors or persons claiming to be creditors, or having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages against the company or whereby the company may be rendered liable; (c) compromise all calls and liabilities to calls, debts, and liabilities capable of resulting in debts, and all claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and a contributory or alleged contributory, or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets or the winding-up of the company, upon such terms as may be agreed, and take any security for the discharge of such calls, debts, liability or claim and give a complete discharge in respect thereof. (2) In the case of a winding-up by the Court the exercise by the liquidator of the powers of this section shall be subject to the control of the Court, and any creditor or contributory may apply to the Court with respect to any exercise or proposed exercise of any of those powers.

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Power of Court to assess damages delinquent promotors, directors, etc.

186. (1) Where in the course of winding-up a company it appears that any person who has taken part in the information or promotion of the company, or any past or present director, manager, or liquidator, or any officer of the company, has misapplied or retained or become liable or accountable for any money or property of the company, or been guilty of any misfeasance or breach of trust in relation to the company, the Court may, on the application of the Master, or of the liquidator, or of any creditor or of any creditor or contributory, examine into the conduct of the promoter, director, manager, liquidator, or officer, and compel him to repay or restore the money or property or any part thereof respectively with interest at such rate as the Court thinks just, or to contribute such sum to the assets of the company by way of compensation in respect of the misapplication, retention, misfeasance, or breach of trust as the Court thinks just. (2) This section shall apply notwithstanding that the offence is one for which the offender may be criminally responsible.

Penalty for falsification of books, etc.

187. If any director, officer, or contributory of any company being wound up destroys, mutilates, alters, or falsifies any books, papers, or securities or makes or is privy to the making of a false or fraudulent entry in any register, book of account, or document belonging to the company with intent to defraud or deceive any person, he shall be guilty of an offence and liable to imprisonment for a period not exceeding seven years.

Prosecution of delinquent directors, etc.

188. (1) If it appears in the course of winding-up of a company that any past or present director, manager, officer or member of the company has been guilty of an offence in relation to the company for which he is criminally responsible the liquidator shall cause all the facts known to him which appear to constitute the offence to be laid before the Attorney- General, and, in the event of the Attorney-General certifying that he declines to prosecute, the liquidator may, subject to the provisions of section 127, institute and conduct a private prosecution for such offence. (2) The Court may, upon application by the liquidator, order the whole or any portion of the costs and expenses incidental to such private prosecution to be paid out of the assets of the company in priority to all other liabilities.

Meetings to ascertain wishes of creditors or contributories.

189. (1) Where by this Act the Court is authorised, in relation to winding-up, to have regard to the wishes of creditors or contributories as proved to it by any sufficient evidence, the Court may, if it thinks fit, for the purpose of ascertaining those wishes, direct meetings of the creditors or contributories to be called, held, and conducted in such manner as the Court directs, and may appoint a person to act as chairman of any such meeting and to report the result thereof to the Court. (2) In the case of creditors regard shall be had to the value of each creditor’s debt. (3) In the case of contributories regard shall be had to the number of votes conferred on each contributory by the articles.

Books of company to be evidence.

190. Where any company is being wound up all books and papers of the company and of the liquidators shall, as between the contributories of the company, be prima facie evidence of the truth of all matters purporting to be therein recorded.

Inspection of books.

191. After an order has been made for winding-up by or subject to the supervision of the Court, the Court may make such order for inspection by creditors and contributories of the company of its books and papers as the Court thinks just, and any books and papers in the possession of the company may be inspected by creditors and contributories accordingly, but not further or otherwise.

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Disposal of books, accounts, and documents of company.

192. (1) When any company has been wound up and is about to be dissolved, the books and papers of the company and of the liquidators may be disposed of as follows — (a) in the case of a winding-up by or subject to the supervision of the Court, in such way as the Court directs; (b) in the case of a voluntary winding-up, in such way as the company by extraordinary resolution directs. (2) After five years from the dissolution of the company, no responsibility shall rest on the company, or the liquidators, or any person to whom the custody of the books and papers has been committed, by reason of the same not being forthcoming to a person claiming to be interested therein.

Power of Court declare dissolution of company void.

193. (1) When a company has been dissolved the Court may, at any time within two years of the date of the dissolution, on an application being made for the purpose by the liquidator of the company or by any other person who appears to the Court to be interested, make an order, upon such terms as the Court thinks fit, declaring the dissolution to have been void, and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved. (2) It shall be the duty of the person on whose application the order was made, within seven days after the making of the order, to lodge with the Registrar a certified copy of the order, and if that person fails so to do, he shall be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day during which the default continues.

Information as to pending liquidations.

194. (1) Where a company is being wound up, if the winding-up is not concluded within one year after its commencement, the liquidator shall, at such intervals as may be prescribed, until the winding-up is concluded, transmit to the Registrar a statement in the prescribed form and containing the prescribed particulars with respect to the proceedings in and position of the liquidation. (2) Any person stating himself in writing to be a creditor or contributor of the company shall be entitled, by himself of by his agent, at all reasonable times, on payment of the prescribed fee, to inspect the statement, and to receive a copy thereof, or extract therefrom; but any person untruthfully so stating himself to be a creditor or contributory shall be guilty of a contempt of court, and shall be punishable accordingly on the application of the liquidator or of the Master. (3) If a liquidator fails to comply with the requirements of this section he shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred emalangeni for each day during which the default continues. (4) If it appears from any such statements or otherwise that a liquidator has in his hands or under his control any money representing unclaimed or undistributed assets of the company, which have remained unclaimed or undistributed for six months after the date of the receipt, the liquidator shall forthwith pay that money to the Master, who shall deposit the same in the Guardian’s Fund referred to in the Administration of Estates Act, No. 28 of 1902 and the liquidator shall be entitled to a certificate of receipt for the money so paid, and that certificate shall be an effectual discharge to him in respect thereof. (5) Any person claiming to be entitled to any money paid to the Master in pursuance of this section may apply to him for payment of the same, and the Master may, on a certificate by the liquidator that the person claiming is entitled, make an order for the payment to that person of the sum due. (6) Any person dissatisfied with the decision of the Master in respect of any claim made in pursuance of this section may appeal to the Court.

Special commissioners for taking evidence.

195. (1) All district officers and such other persons as the Court may appoint shall be commissioners for the purpose of taking evidence under this Act in cases where a company is wound up and the Court may refer the whole or any part of the examination of any witnesses under this Act to any person hereby appointed commissioner, although he is out of the jurisdiction of the Court which made the winding-up order.

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(2) Every commissioner shall, in addition to any powers which he might lawfully exercise as district officer, have in the matter so referred to him, the same powers of summoning and examining, of requiring the production or delivery of documents of punishing defaults by witnesses, and of allowing costs and expenses to witnesses, as the Court which made the winding-up order. (3) The examination so taken shall be returned or reported to the Court which made the order in such manner as that Court directs.

REMOVAL OF DEFUNCT COMPANIES FROM REGISTER

Registrar may strike defunct company off register.

196. (1) When the Registrar has reasonable cause to believe that a company is not carrying on business or is not in operation, he shall send to the company by post a letter enquiring whether it is carrying on business or is in operation. (2) If the Registrar does not within one month of sending the letter receive any answer thereto, he shall within fourteen days after the expiration of the month send to the company a registered letter referring to the first letter and stating that no answer thereto has been received, and that if an answer is not received to the second letter within one month from the date thereof a notice will be published in the Gazette and in a newspaper circulating in Swaziland with a view to striking the name of the company off the register. (3) If the Registrar either receives an answer from the company to the effect that it is not carrying on business or is not in operation, or does not within one month after sending the second letter receive any answer, he may publish in the Gazette and in a newspaper circulating in Swaziland and send to the company by post a notice that at the expiration of three months from the date of that notice the name of the company mentioned therein will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved. (4) If, in any case where a company is being wound up, the Registrar has reasonable cause to believe either that no liquidator is acting, or that the affairs of the company are fully wound up, and the returns required to be made by the liquidator have not been made for a period of six consecutive months after notice by the Registrar demanding the returns has been sent by post to the company, or to the liquidator at his last known place of business, the Registrar may publish in the Gazette and a newspaper circulating in Swaziland and send to the company a like notice as is provided in subsection (3). (5) At the expiration of the time mentioned in the notice the Registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register and shall publish notice thereof in the Gazette and a newspaper circulating in Swaziland and on the publication of this notice the company shall be dissolved: Provided that the liability (if any) of every director, managing officer, and member of the company shall continue and may be enforced as if the company had not been dissolved. (6) If a company or any member or creditor thereof feels aggrieved by the company having been struck off the register the Court, on the application of the company, or member or creditor may, if satisfied that the company was at the time of the striking off carrying on business or was in operation, or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register, and thereupon the company shall be deemed to have continued in existence as if its name had not been struck off; and the Court may, by the order, give such directions and make such provisions as seem just for placing the company and all other persons in the same position, as nearly as may be, as if the company had not been struck off. (7) A letter or notice under this section shall be addressed to the company at its registered office, or, if no office has been registered to the care of some director or officer of the company, or, if there is no director or officer of the company whose name and address are known to the Registrar, may be sent to each of the persons who subscribed the memorandum addressed to him at the address mentioned in the memorandum. (8) The cost of any notices published in terms of subsections (3), (4) and (5) shall be recoverable from the company concerned, or if the company has no assets, then from the directors of the company either jointly or severally.

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Orders to be transmitted to Master and registering office.

197. (1) Whenever under this Act any order is made by the Court in connection with the winding-up or dissolution of a company, a copy of such order shall, as soon as may be after the making thereof, be transmitted by the Registrar of the Court which made the order to the Master. (2) Whenever any such order affects the title to immovable property or mining title a copy of the order shall, as soon as may be after the making thereof, be transmitted by the Registrar of the Court which made the order to the Registrar of Deeds, and to every registering officer charged with the duty of registering title to immovable property or mining title in Swaziland.

PART V

FOREIGN COMPANIES

Foreign companies.

198. (1) Every foreign company (other than a banking company or insurance company as hereinafter defined) which on the 19th of February, 1912 had a place of business in Swaziland and every foreign company which, after such commencement establishes a place of business in Swaziland and which uses the word “Limited” as part of its name shall — (a) in every prospectus inviting subscriptions for its shares or debentures in Swaziland, state the foreign country in which the company is registered or incorporated; and (b) conspicuously exhibit, outside all its places of business in Swaziland, the name of the company and the foreign country in which the company is registered or incorporated; and (c) have the name of the company and of the foreign country in which the company is registered or incorporated, mentioned in legible characters in all billheads, and letter paper, and in all notices, advertisements, and other official publications of the company. (2) If any foreign company to which this section applies fails to comply with any requirement of this section, the company, and every officer or agent of the company in Swaziland shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred emalangeni, or, in the case of a continuing default, ten emalangeni for every day during which the default continues: Provided that no penalty shall be recoverable under this subsection except for an offence committed after the expiration of three months, from the commencement of this Act. (3) For the purposes of this section —

“banking company” means a company which by reason of the business carried on by it (but so far only as concerns such business) is subject to the provisions of the Banks Act;

“insurance company” means a company which by reason of the business carried on by it (but so far only as concerns such business) is subject to the provisions of the Insurance Act;

“place of business” means any place where the company transacts, or holds itself out as transacting business, and shall include a share transfer or share registration office.

PART VI

APPLICATION OF ACT

Restricted application of Act in case of banking and insurance companies.

199. Where a company is subject to the provisions of — (a) the Bank Act or any law which for the time being is specially applicable to banking companies; or (b) the Insurance Act or any law which for the time being is especially applicable to life, fire or accident insurance companies or societies, the provisions of this Act which would otherwise apply in respect of such company shall not apply wherever those provisions would be inconsistent with any such law.

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Exemption from Act of co-operative agricultural societies, building societies, friendly societies and trade unions.

200. (1) The provisions of this Act shall not be construed as applying to a building society, a friendly society, a trade union or a co-operative agricultural society: Provided that — (a) any society or union in this subsection mentioned shall, until the enactment of any law providing for its registration and management, be permitted to register under Part I upon complying with the provisions of that chapter in respect of registration; (b) every such society or union, unless so registered, shall be deemed for the purposes of Part VII, to be an unregistered company. (2) In this section —

“building society” means a building society as defined in section 5 of the Building Societies Act, No. 1 of 1962;

“friendly society” shall, until a law is in force in Swaziland regulating friendly societies, mean a society of persons formed solely or mainly for the purpose of raising by the voluntary subscriptions of its members, with or without the aid of donations, a fund — (a) for the relief or maintenance of members and their relatives during minority, old age, widowhood, sickness, or other infirmity, mental or bodily, or for the endowment at any age of members or their nominees; (b) providing medical attendance and procuring medicines and medical requirements for such members or relatives; (c) insuring a sum of money to be paid on the birth of a member’s child or on the death of a member or for the funeral expenses of the husband, wife, child, or relative of a member; and, when any such law is in force, shall mean a friendly society as therein defined;

“trade union” means a trade union as defined in the Trade Union and Employers Organization Act, No. 12. of 1966;

“co-operative agricultural society” means a co-operative agricultural society registered under the Co-operative Societies Act, No. 28 of 1964.

PART VII

WINDING-UP OF UNREGISTERED COMPANIES

Winding-up of unregistered companies.

201. Subject to the provisions of this Part any company, association, syndicate or partnership having a place of business in Swaziland, which consists of more than seven members and is not a company to which Parts I, II and III apply, may be wound up under this Act, and all the provisions of this Act with respect to winding-up shall apply to such a company, association, syndicate or partnership (hereinafter referred to as an “unregistered company”) with the following exceptions and additions — (a) no unregistered company shall be wound up under this Act voluntarily or subject to supervision; (b) the circumstances in which an unregistered company may be wound up are as follows: (i) if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding-up its affairs; (ii) if the company is unable to pay its debts; (iii) if the Court is of opinion that it is just and equitable that the company should be wound up; (c) an unregistered company shall, for the purposes of this Act, be deemed to be unable to pay its debts; (i) if a creditor, by cession or otherwise, to whom the company is indebted in a sum exceeding one hundred emalangeni then due, has served on the company, by leaving at its principal place of

593

business, or by delivering to the secretary or some director, manager or principal officer of the company, or by otherwise serving in such manner as the Court may approve or direct, a demand under his hand requiring the company to pay the sum so due, and the company has for three weeks after the service of the demand neglected to pay the sum, or to secure or to compound for it to the satisfaction of the creditor; (ii) if any action or other proceeding has been instituted against any member for any debt or demand due or claimed to be due, from the company, or from him in his character of member, and notice in writing of the institution of the action or proceeding having been served on the company by leaving it as its principal place of business, or by delivering it to the secretary, or some director, manager, or principal officer of the company, or by otherwise serving it in such manner as the Court may approve or direct, the company has not within ten days after service of the notice paid, secured, or compounded for the debt or demand, or procured the action or proceeding to be stayed, or indemnified the defendant to his reasonable satisfaction against the action or proceeding, and against all costs, damages and expenses to be incurred by him by reason of the same; (iii) if execution or other process issued on a judgment, decree or order obtained in any Court in favour of a creditor against the company, or any member thereof as such, or any person authorised to be sued as nominal defendant on behalf of the company, is returned unsatisfied by the sheriff or messenger with the endorsement that he has not found sufficient assets, to satisfy the judgment, decree, or order, or that any assets found did not, upon sale, satisfy the execution or other process; (iv) if it is otherwise proved to the satisfaction of the Court that the company is unable to pay its debts.

Contributories in winding-up of unregistered company.

202. (1) In the event of an unregistered company being wound up, every person shall be deemed to be a contributory who is liable to pay or contribute to the payment of any debt or liability of the company, or to pay or contribute to the payment of any sum for the adjustment of the rights of the members amongst themselves, or to pay or contribute to the payment of the costs and expenses of winding-up the company, and every contributory shall be liable to contribute to the assets of the company all sums due from him in respect of any such liability as aforesaid. (2) In the event of the death or insolvency of any contributory, the provisions of this Act with respect to the legal representatives, heirs, and legatees of deceased contributories and to the trustees of insolvent contributories shall apply.

Power of Court to stay or restrain proceedings.

203. The provisions of this Act with respect to staying and restraining actions and proceedings against a company at any time after the presentation of a petition for winding-up, and before the making of a winding-up order shall, in the case of an unregistered company, where the application to stay or restrain is by a creditor, extend to actions and proceedings against any contributory of the company.

Actions stayed on winding-up order.

204. Where an order has been made for winding-up an unregistered company, no action or proceeding shall be proceeded with or commenced against any contributory of the company in respect of any debt of the company, except by leave of the Court, and subject to such terms as the Court may impose.

Directions as to property in certain cases.

205. If an unregistered company has no power to sue and be sued in a common name, or if for any reason it appears expedient, the Court may by winding-up order, or by any subsequent order direct that all or any part of the property immovable and movable (including right of action) belonging to the company, or to trustees on its behalf, is to vest in the liquidator by his official name, and thereupon the property or the part thereof specified in the order shall vest accordingly; and the liquidator may, after giving such indemnity (if any) as the Court may direct, bring or defend in his official name any action or other legal proceeding relating to that property, or necessary to be brought or defend for the purpose of effectually winding-up the company and recovering its property. 594

Provisions of this Part cumulative.

206. The provisions of this Part with respect to unregistered companies shall be deemed to be in addition to and not in restrict of any provision hereinbefore in this Act contained with respect to winding-up companies by the Court, and the Court or liquidator may exercise any powers or do any act in the case of unregistered companies which might be exercised or done by it or him in winding-up companies registered under Part I; but an unregistered company shall not, except in the event of its being wound up, be deemed to be a company under this Act, and then only to the extent provided by this Part.

PART VIII

MISCELLANEOUS PROVISIONS

Amalgamation schemes to be submitted to Minister.

207. (1) Three months prior to the date when any amalgamation scheme or portion thereof is to be submitted to any general meeting of a company that scheme shall be submitted to the Minister, and, unless it has been so submitted, the Registrar shall not register in his office any document which gives effect to the scheme or to any portion thereof. (2) For the purposes of this section an amalgamation scheme shall mean a scheme under which any one or more companies will be dissolved and the undertaking or undertakings of the dissolved company or companies transferred to a new company, or to another company then existing with or without a change in the name of that company, or a scheme under which the entire undertaking and assets of any company are transferred to another company.

Costs in actions by limited companies.

207A. Where a limited company is plaintiff or applicant in any legal proceeding, the Court having jurisdiction in the matter may, at any stage, if it appears by credible testimony that there is reason to believe that the company or the liquidator of a limited company will be unable to pay the costs of the defendant or respondent if successful in his defence, require sufficient security to be given for those costs and may stay all proceedings still the security is given. (Added P.14/1964.)

Power of Court to grant relief in certain cases.

208. If, any proceeding under this Act against a director of a company for negligence or breach of trust, it appears to the Court hearing the case that the director is or may be liable in respect of negligence or breach of trust, but has acted honestly and reasonably, and ought fairly to be excused for the negligence or breach of trust, that Court may relieve him either wholly or partly from his liability, on such terms as the Court may think proper.

Prescribed fees, forms and alterations thereof.

209. (1) There shall be paid in respect of the several matters mentioned in the First Schedule to this Act or in that Schedule as altered or added to under the powers of this section the several fees specified in such Schedule or in the alteration or addition thereto. (2) All such fees shall be paid by means of revenue stamps which shall be duly defaced by the officer concerned with the particular matter. (3) The forms set forth in the Second Schedule to this Act, or forms as nearly thereto as the circumstances admit, shall be used in all matters to which those forms refer. (4) The Minister may alter or add to the tables in the First Schedule to this Act, and may alter or add to any of the forms in the Second Schedule to this Act or Table A. (5) The Minister may further make or alter a table of fees which shall be payable to a liquidator or special manager as remuneration and such a table of fees, when so made or altered, shall be deemed to form part of the First Schedule to this Act. (6) Any such table and form as altered, and any added form shall be published in the Gazette, and thenceforth shall have the same force and effect as if it were included in one of the Schedules to this Act but no alteration in, or addition to, Table A shall affect any company registered before the publication of the alteration, or addition, as respects that company, or shall repeal any portion of Table A which applies to it. 595

Penalty for late filing.

210. If any return required by any provision of this Act to be filed with the Registrar is not so filed within the time specified by such provision, such return may only be filed on payment of a penalty equal to three times the amount of the fee which would ordinarily be payable in respect of the filing of such return, in addition to the payment of the fee ordinarily payable as aforesaid: Provided that payment of such fee and penalty shall be without prejudice to the question of prosecuting the company or any officer thereof in respect of any default or offence specified by this Act.

Power to the Minister to make rules.

211. (1) The Minister may make, alter, or rescind rules concerning the procedure to be followed with respect to matters in which the Court is empowered under this Act to exercise jurisdiction. (2) Every such rule and any alteration or rescission thereof shall, when published in the Gazette, have full force and effect.

Office for registration of companies.

212. (1) There shall be an officer in Mbabane styled “the Registrar of Companies” and such other officers and clerks as may be necessary for carrying out the registration of companies under this Act or for effectively exercising any other power or jurisdiction or performing any other duties assigned by this Act or any amendment thereof to the Registrar. (2) The Minister may make Regulations not inconsistent with this Act prescribing the duties of the Registrar. (3) Any person may inspect the documents kept by the Registrar on payment of the prescribed fees; and any person may require a certificate of the incorporation of any company, or a copy or extract of any other document or part of any other document, to be certified by the Registrar, on payment for the certificate, certified copy, or extract, of the prescribed fee.

Service of documents.

213. Any notice, or other document which by this Act may be or is required to be served upon a company may be served by leaving it at, or sending it by prepaid registered post to — (a) the registered office of a company; (b) the principal place of business in Swaziland in the case of an unregistered company.

Judicial notice of signature of officers.

214. (1) In all proceedings under this Act, all Courts, judges, and persons acting judicially, and all officers, judicial or executive, of any Court, or employed in enforcing the process of any Court, may take judicial notice of the signature of any officer of the Court, and shall take judicial notice of the official seal or stamp of any such Court appended to or impressed on any document made, signed, or issued under this Act or an official copy thereof. (2) All Courts, judges, commissioners, and persons acting judicially may take judicial notice of the seal, or stamp, or signature appended or subscribed (as the case may be) to an affidavit lawfully sworn or solemn declaration lawfully made for the purposes of this Act.

Penalties for false statements and false oaths.

215. (1) Any person who in any statement, return, report, certificate, balance-sheet, or other document required by or for the purposes of any of the provisions of this Act wilfully makes a statement false in any material particular, knowing it to be false, shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred emalangeni or to imprisonment for a period not exceeding one year. (2) Any person who, on examination on oath authorised under this Act, or in any affidavit, solemn declaration or deposition in or about any matter arising under this Act, wilfully and corruptly gives false evidence, shall be guilty of an offence and liable on conviction to the penalties prescribed by law for perjury.

596

Penalty for improper use of word “Limited”.

216. Any person or persons trading or carrying on business under a name or title of which the word “Limited” is the last word shall, unless duly incorporated with limited liability, be guilty of an offence and liable on conviction to a fine not exceeding ten emalangeni for every day upon which that name or title has been used.

Officers liable for default by company.

217. Whenever under this Act a company is liable to any penalty for a default or offence, proceedings may be instituted for that default or offence against any director, manager, secretary, or other officer of the company, and the Court having jurisdiction in respect of the default or offence may convict and sentence therefore any person against whom the proceedings are so instituted, unless he shall satisfy that Court that the default or offence was made or committed without his knowledge, authority, or permission.

Offences and penalties.

218. Every company or person charged with a default or offence under this Act may be prosecuted before a court established under the Subordinate Courts Proclamation having jurisdiction at the place where the default is alleged to have been made or the offence to have been committed; and if the default or offence is punishable by a fine that court shall have special jurisdiction to impose the maximum fine prescribed or, in a case of a continuing default or offence, the aggregate amount of the maximum fines.

Imprisonment in default of payment of fines.

219. Whenever under this Act any fine is imposed for a default or offence, and the person convicted does not forthwith pay the fine, the Court imposing the same may, without prejudice to any steps that may be lawfully taken for levying such fine by distress and sale of movable property belonging to that person, order the imprisonment of that person for a period not exceeding one month if the fine does not exceed ten emalangeni, for a period not exceeding three months if the fine exceed ten emalangeni and does not exceed one hundred emalangeni, and for a period not exceeding one year if the fine exceeds one hundred emalangeni, and a Court imposing the fine shall have special jurisdiction to impose, in default of payment thereof, the maximum period of imprisonment.

FIRST SCHEDULE (Replaced in its entirety by L.N.55/1994.)

TABLE OF FEES TO BE PAID BY A COMPANY UNDER THIS ACT (1) For registration of original Memorandum of Association ...... E100.00 (2) For registration of an altered Memorandum of Association or a substituted Memorandum and Article of Association and the Order of Court confirming same ...... E100.00 (3) For registration of reduction of the capital of a company and the Order of Court confirming same ...... E100.00 (4) For registration of change of name of a company ...... E200.00 (5) For registration of any document hereby required or authorized to be registered other than the above ...... E20.00 (6) For making any record of any fact hereby authorized or required to be recorded by the Registrar ...... E20.00 (7) Upon lodging annual list and summary, pursuant to section 26 ...... E50.00 (8) For any certificate issued by the Registrar ...... E50.00 (9) For inspection of any documents filed with the Registrar ...... E10.00 (10) For inspection of the registers kept by the Registrar ...... E10.00 (11) For altering address in register ...... E10.00 (12) For reserving a new company name (for each period of three months) ...... E10.00 (13) Change of the end of a company’s financial year ...... E10.00

597

(14) Registration of a special resolution for the conversion of one type of company into another type or form of company ...... E30.00 (15) Registration of a Memorandum of an external company ...... E100.00 (16) Requesting the submission of provisional financial statement of a private company ...... E10.00 (17) Certifying additional copies of documents lodged for registration ...... E10.00 (18) Granting of exemption from lodging annual financial statement of a subsidiary ...... E30.00 (Amended L.N.62/1971; A.8/1985.)

SECOND SCHEDULE

FORM A MEMORANDUM OF ASSOCIATION OF A LIMITED COMPANY

1. The name of the company is “The Derdepoort (Deep) Mining Company, Limited”.

2. The registered office of the company will be situated in Swaziland.

3. The objects for which the company is established are to purchase, take on lease, or otherwise acquire any mines, mining rights, and metalliferous land in Swaziland, and any interest therein, to explore, work, exercise, develop and turn to account the same and to do all such other things as are incidental or conducive to the attainment of the above objects.

4. The liability of the members is limited.

5. The share capital of the company is two hundred thousand emalangeni divided into one hundred thousand shares of two emalangeni each. We, the several persons whose names and addresses are subscribed, are desirous of being formed into a company in pursuance of this memorandum of association, and we respectively agree to take the number of shares in the capital of the company set opposite our respective names. No. of Shares Names, Addresses and Description of Subscribers taken by each Subscriber 1. John Jones of Merchant ...... 200 2. Andries de Villiers of Farmer ...... 25 3. Peter Grant of Prospector ...... 30 4. Jacobus Steenkamp of General Agent ...... 40 5. James Murphy of Financier ...... 15 6. Paulus Oosthuizen of Mining Engineer ...... 5 7. William Smith of Attorney ...... 10

Total shares taken...... 325 Dated the day of , 19 . Witnesses to the above signatures: A.B. C.D.

FORM B

598

MEMORANDUM AND ARTICLES OF ASSOCIATION OF AN UNLIMITED COMPANY HAVING A SHARE CAPITAL

MEMORANDUM OF ASSOCIATION

1. The name of the company is “The Patent Stereotype Company”.

2. The registered office of the company will be situated in Mbabane.

3. The objects for which the company is established are the working of a patent method of founding and casting stereotype plates of which method John Smith of Johannesburg is the sole patentee. We, the several persons whose names are subscribed, are desirous of being formed into a company in pursuance of this memorandum of association, and we respectively agree to take the number of shares in the capital of the company set opposite our respective names. No. of Shares Names, Addresses and Description of Subscribers taken by each Subscriber 1. John Jones of Merchant ...... 3 2. Andries de Villiers of Farmer ...... 2 3. Peter Grant of Prospector ...... 1 4. Jacobus Steenkamp of General Agent ...... 2 5. James Murphy of Financier ...... 2 6. Paulus Oosthuizen of Mining Engineer ...... 1 7. William Smith of Attorney ...... 1

Total shares taken 12 Dated the day of , 19 . Witnesses to the above signatures: A.B. C.D.

ARTICLES OF ASSOCIATION TO ACCOMPANY THE PRECEDING MEMORANDUM OF ASSOCIATION 1. The share capital of the company is four thousand emalangeni divided into twenty shares of two hundred emalangeni each. 2. All the articles of Table A in the Third Schedule to the Companies Act shall, so far as they are applicable to an unlimited company, be deemed to be incorporated with these articles and to apply to the company.

Names, Addresses and Description of Subscribers 1. John Jones of Merchant 2. Andries de Villiers of Farmer 3. Peter Grant of Prospector 4. Jacobus Steenkamp of General Agent 5. James Murphy of Financier 6. Paulus Oosthuizen of Mining Engineer 7. William Smith of Attorney Dated the day of , 19 . Witnesses to the above signatures:

FORM C (As required by Part II of the Act) Summary of Share Capital and Shares of the Company, Limited,

599

made up to the day of 19 (being the fourteenth day after the date of the first ordinary general meeting in 19 ). Nominal capital E divided into* shares of E. each. shares of E. each.

* When there are shares of different kinds or amounts (e.g. preference and ordinary of E20 or E10) state the numbers and nominal values separately. Total number of shares taken up to the day of 19 (which number must agree with the total shown in the list as held by existing members) Number of shares issued subject to payment wholly in cash...... Number of shares issued as fully paid for a consideration other than cash ...... Number of shares issued as partly paid up to the extent of per share for a consideration other than cash ...... †There has been called up on each shares, E †There has been called up‡ on each of shares, E †There has been called up on each of shares, E §Total amount of calls received, including payments on application and allotment ...... E Total amount (if any) agreed to be considered as paid on shares which have been issued as fully paid (for a consideration other than cash) ...... E Total amount (if any) agreed to be considered as paid on shares which have been issued as fully paid up to the extent of...... per share E Total amount of calls unpaid ...... E Total amount (if any) of sums paid by way of commission in respect of shares or debentures or allowed by way of discount since date of last summary ...... E Total amount (if any) paid on¶ shares forfeited ...... E Total amount of shares and stock for which share warrants are outstanding ...... E Total amount of share warrants issued and surrendered respectively since date of last summary ...... E Number of shares or amount of stock comprised in each share warrant .... E Total amount of debt due from the company in respect of all mortgages and charges ...... E Statement in the form of a balance-sheet containing the particulars of the capital, liabilities, and assets of the company.

† Where various amounts have been called or there are shares of different kinds state them separately. ‡ Include what has been received on forfeited as well as on existing shares. § Include what has been received on forfeited as well as on existing shares. ¶ State the aggregate number of shares forfeited (if any). 600

The return must be signed at the end by the manager or secretary of the company. Presented for filing by List of persons holding shares in the Company Limited on the day of 19 , and of persons who have held shares therein not fully paid up at any time during the year immediately preceding the said date, showing their names and addresses and the account of the shares so held.

Names and Addresses Account of Shares not Fully Paid Up

‡Particulars of ‡Particulars of Shares transferred Shares transferred during the during the Sur- Christian Address preceding year by preceding year by name Name person who have person who are ceased to be still Members Members

Date of Date of Registr Registrati Re- †Number †Number ation of on of marks Transfe Transfer r

* The aggregate number of shares held and not the distinctive numbers must be stated and the column must be added up throughout so as to make one total to agree with that stated in the summary to have been taken up. † When the shares are of different classes these columns may be sub-divided so that the number of each class held or transferred may be shown respectively. ‡ The date of registration of each transfer should be given as well as the number of shares transferred on each date. The particulars should be placed opposite the name of the transferor and not opposite that of the transferee, but the name of the transferee may be inserted in the “Remarks” column immediately opposite the particulars of each transfer. Names and addresses of the persons who are the directors of the Limited on the day of 19 .

Names Address

601

(Signature) (State whether manager or secretary)

THIRD SCHEDULE

TABLE A

REGULATIONS FOR MANAGEMENT OF A COMPANY LIMITED BY SHARES

PRELIMINARY

1. In these Regulations, unless the context otherwise requires, expressions defined in the Swaziland Companies Act (hereinafter called “the Act”), or any statutory modification thereof in force at the date at which these Regulations binding on the company, shall have the meanings so defined; the expression “foreign committee” shall mean any such committee as is appointed under article 89 of these Regulations and words importing the singular shall include the plural, and vice versa, and words importing the masculine gender shall include females, and words importing persons shall include bodies corporate.

BUSINESS

2. The directors shall have regard to the restrictions on the commencement of the business imposed by section 85 of the Act, if, and so far as, those restrictions are binding upon the company.

SHARES AND CERTIFICATES OF SHARES

3. Subject to the provisions, if any, in that behalf of the memorandum of association of the company and without prejudice to any special rights previously conferred on the holders of existing shares in the company, any share in the company may be issued with such preferred, deferred, or other special rights, or such restrictions, whether in regard to dividend, voting, return of capital or otherwise, as the company may from time to time by special resolution determine.

4. If at any time the share capital is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may be varied with the consent in writing of the holders of three-fourths of the issued shares of that class, or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of the shares of that class. To every such separate general meeting the provisions of these Regulations relating to general meetings, and section 63 and 65 of the Act whenever applicable, shall mutatis mutandis apply, but so that the necessary quorum shall be two persons at least holding or representing by proxy one-third of the issued shares of the class.

5. No share shall be offered to the public for subscription except upon the terms that the amount payable on application shall be at least ten per centum of the nominal amount of the share; and the directors shall, as regards any allotment of shares, duly comply with such of the provisions of section 83 and 86 of the Act, as may be applicable thereto.

6. Every person whose name is entered as a member in the register of members shall, without payment, be entitled to a certificate specifying the share or shares held by him and the amount paid up thereon.

7. If a share certificate is defaced, lost, or destroyed, it may be renewed on payment of such fee, if any, not exceeding ten cents, and on such terms, if any, as to evidence and indemnity as the directors think fit.

8. Share certificates shall be issued under the authority of the directors, or the foreign committee when authorised thereto by resolution of the directors, in such manner and form as the directors shall form time to time prescribe. All shares shall be numbered in numerical progression beginning with the number one, and each share shall be distinguished by its appropriate number.

9. Each member shall be entitled to one certificate for all the shares registered in his name, or to several certificates, each for a part of such shares. Every share certificate shall specify the number of shares in respect of which it is issued, and the amount paid up thereon. Every original member shall be entitled to one share certificate gratis but for every subsequent certificate the directors may make such charge as from time to time they may think fit.

602

10. A certificate for shares registered in the names of two or more persons shall be delivered to the person first named in the register as a holder thereof, and delivery of a certificate for a share to that person shall be a sufficient delivery to all joint holders of that share.

11. No part of the funds of the company shall be employed in the purchase of, or in loans upon the security of, the company’s shares.

LIEN

12. The company shall have a lien on every share (not being a fully paid share) for all moneys (whether presently payable or not) called or payable at a fixed time in respect of such share and the company shall also have a lien on all shares (other than fully paid shares) standing registered in the name of a single person, for all moneys presently payable by him or his estate to the company; but the directors may at any time declare any share to be wholly or in part exempt from the provisions of this clause. The company’s lien, if any, on a share shall extend to all dividends payable thereon.

13. The company may sell, in such manner as the directors think fit, any shares on which the company has a lien, but no sale shall be made unless some sum in respect of which the lien exists, is presently payable, nor until the expiration of fourteen days after a notice in writing stating and demanding payment of such part of the amount in respect of which the lien exists as is presently payable, has been given to the registered holder for the time being of the share or, the person entitled by reason of his death or insolvency to the share.

14. The proceeds of the sale shall be applied in payment of such part of the amount in respect of which the lien exists as is presently payable, and the residue shall (subject to a like lien for sums not presently payable as existed upon the shares prior to the sale) be paid to the person entitled to the shares at the date of the sale. The purchaser shall be registered as the holder of the shares, and he shall not be bound to see the application of the purchase money, nor shall his title to the shares be affected by any irregularity or invalidity in the proceedings in reference to the sale.

CALLS ON SHARES

15. The directors may from time to time make calls upon the members in respect of any moneys unpaid on their shares: Provided that no call shall exceed one-fourth of the nominal amount of the share, or be payable in less than one month from the last call; and each member shall (subject to receiving at least fourteen days’ notice specifying the time or times of payment) pay to the company at the time or times so specified the amount called on his shares. 16. The joint holders of a share shall be jointly and severally liable to pay all calls in respect thereof. 17. If a sum called in respect of a share is not paid before or on the day appointed for payment thereof, the person from whom the sum is due shall pay interest upon the sum at the rate of twenty emalangeni per centum per annum from the day appointed for the payment thereof to the time of the actual payment, but the directors shall be at liberty to waive payment of such interest wholly or in part. 18. The provisions of these Regulations as to payment of interest shall apply in the case of non-payment of any sum which, by the terms of issue of a share, becomes payable at a fixed time, whether on account of the amount of the share, or by way of premium, as if the same had become payable by virtue of a call duly made and notified. 19. The directors may make arrangements on the issue of shares for a difference between classes of holders in the amount of calls to be paid and in the times of payment. 20. The directors may, if they think fit, receive from any member willing to advance the same all or any part of the moneys uncalled and unpaid upon any shares held by him; and upon all or any of the moneys so advanced may (until the same would, but for such advance become presently payable) pay interest at such rate (not exceeding, without the sanction of the company in general meeting, six per centum) as may be agreed upon between the members paying the sum in advance and the directors. If the whole amount paid on any shares be paid, the directors may issue those shares as fully paid up.

TRANSFER AND TRANSMISSION OF SHARES

603

21. The instrument of transfer of any share in the company shall be executed both by the transferor and transferee, and the transferor shall be deemed to remain a holder of the share until the name of the transferee is entered in the register of members in respect thereof. 22. Shares in the company shall be transferred in the following form, or in any usual or common form which the directors shall approve: I, A.B., of…………………………in consideration of the sum of E……………...paid to me by C. D., of……………………..(hereinafter called “the said transferee”) do hereby transfer to the said transferee the share (or shares) numbered……………………...in the undertaking called the………………………Company, Limited, to hold unto the said transferee, his legal representatives and assigns, subject to the several conditions on which I held the same at the time of the execution thereof; and I, the said transferee, do hereby agree to take the said share (or shares) subject to the conditions aforesaid. As witness our hands the………………….day of……………………….. 19……… . Witness to the signatures of, etc. 23. The directors may decline to register any transfer of shares not being fully paid up shares, to a person of whom they do not approve, and may also decline to register any transfer of shares on which the company has a lien. The directors may also suspend the registration of transfers during the fourteen days immediately preceding the ordinary general meeting in each year. The directors may decline to recognise any instrument of transfer unless — (a) a fee not exceeding twenty-five cents is paid to the company in respect thereof; and (b) the instrument of transfer is accompanied by the certificate of the shares to which it relates, and such other evidence as the directors may reasonably require to show the right of the transferor to make the transfer. 24. Every instrument of transfer shall be left at a transfer office of the company at which it is present for registration, accompanied by a certificate of the shares to be transferred. Every power of attorney given by a shareholder authorising the transfer or shares, shall, when lodged, produced or exhibited to the company or any of its proper officers, be deemed as between the company and the donor of the power to continue and remain in full force and effect, and the company may allow that power to be acted upon until such time as express notice in writing of its revocation has been lodged at such of the company’s transfer offices as the power was lodged, produced or exhibited as aforesaid. The company shall not be bound to allow the exercise of any act or matter by an agent for a shareholder unless a duly certified copy of that agent’s authority be produced and lodged with the company. 25. The legal representatives of a deceased sole holder of a share shall be the only person recognised by the company as having any title to the share. In the case of a share registered in the names of two or more holders, the survivors or survivor, or the legal representatives of the deceased survivor shall be the only person recognised by the company as having any title to the share. 26. Any person becoming entitled to a share in consequence of the death or insolvency of a member shall, upon such evidence being produced as may from time to time be required by the directors, have the right, either to be registered as a member in respect of the share or instead of being registered himself, to make such transfer of the share as the deceased or insolvent could have made; but the directors shall, in either case, have the same right to declare or suspend registration as they would have had in the case of a transfer of the share by the deceased or insolvent before the death or insolvency but nothing herein contained shall release the estate of a deceased joint shareholder from any liability in respect of shares jointly held by him.

27. The parent or guardian of a minor and the curator bonis of a lunatic member and any person becoming entitled to shares in consequence of the death, insolvency, or arrangement with creditors, of any member or the marriage of any female member or by any lawful means other than by transfer in accordance with these Regulations, may, upon producing such evidence as sustains the character in respect of which he proposes to act under this Regulation, or of his title, as the directors think sufficient, transfer those shares to himself or any other person, subject always to the Regulations as to transfer hereinbefore contained. This Regulation is hereinafter referred to as the “transmission clause”.

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28. A person becoming entitled to a share by reason of the death or insolvency of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the share, except that he shall not, before being registered as a member in respect of the share, be entitled in respect of it to exercise any right conferred by membership in relations to meetings of the company.

FORFEITURE OF SHARES

29. If a member fails to pay any call or instalment of a call on the day appointed for payment thereof, the directors may, at any time thereafter during such time as any part of such call or instalment remains unpaid, serve a notice on him requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued.

30. The notice shall name a further day (not earlier than the expiration of fourteen days from the date of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or before the time appointed the shares in respect of which the call was made will be liable to be forfeited.

31. If the requirements of any such notice as aforesaid are not complied with, any share in respect of which the notice has been given may at any time thereafter, before the payment required by the notice has been made, be forfeited by a resolution of the directors to that effect.

32. A forfeited share may be sold or otherwise disposed of on such terms and in such manner as the directors think fit, and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the directors think fit.

33. A person whose shares have been forfeited shall cease to be a member in respect of the forfeited shares, but shall, notwithstanding, remain liable to pay to the company all moneys which, at the date of forfeiture, were presently payable by him to the company in respect of the shares, but his liability shall cease if and when the company shall have received payment in full of the nominal amount of the shares.

34. When any shares shall have been so forfeited notice of the resolution shall be given to the person in whose name the shares stood prior to the forfeiture, and an entry of the forfeiture with the date thereof shall forthwith be made in the register.

35. An affidavit or solemn declaration in writing that the declarant is a director of the company, and that a share in the company has been duly forfeited on a date stated in the declaration shall be conclusive evidence of the facts therein stated as against all persons claiming to be entitled to the share, and such declaration, and the receipt of the company for the consideration (if any) given for the share on the sale or disposition thereof shall constitute a good title to share, and the person to whom the share is sold or disposed of shall be registered as the holder of the share and shall not be bound to see to the application of the purchase money, if any, nor shall his title to the share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the share.

36. The provisions of these Regulations as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a share, becomes payable at a fixed time whether, on account of the amount of the share, or by way of premium, as if the same had been payable by virtue of a call duly made and notified.

CONVERSION OF SHARES INTO STOCK

37. The directors may, with the sanction of the company previously given in general meeting, convert any paid-up shares into stock and may with the like sanction reconvert any stock into paid-up shares of any denomination.

38. The holders of stock may transfer the same, or any part thereof, in the same manner, and subject to the same Regulations as, and subject to which, the shares from which the stock arose might previously to conversion have been transferred, or as near thereto as circumstances admit; but the directors may from time to time fix the minimum amount of stock transferable, and restrict or forbid the transfer of fractions of such minimum, but the minimum shall not exceed the nominal amount of the shares from which the stock arose.

39. The holders of stock shall, according to the amount of the stock held by them, have the same rights, privileges, and advantages as regard dividends, voting at meetings of the company, and other matters as if they held the shares from which the stock arose, but no such privilege or advantage (except participation in the dividends and profits of the company) shall be conferred by any such aliquot part of stock as would not if existing in shares, have conferred that privilege or advantage.

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40. Such of the Regulations of the company (other than those relating to share warrants) as are applicable to paid-up shares shall apply to stock, and the word “share” and “shareholder” therein shall include “stock” and “stock-holder”.

SHARE WARRANTS

41. The company may issue share warrants, and accordingly the directors or, if so authorised, any foreign committee, may, in their discretion, with respect to any share which is fully paid up, on application in writing signed by the person registered as holder of the share, and authenticated by such evidence (if any) as the directors or foreign committee (as the case may be), may from time to time require as to the identity of the person signing the request, and on receiving the certificate (if any), of the share, and the amount of the stamp duty (if any) on the warrant and such fee as the directors may from time to time require, issue a warrant, duly stamped, when stamp duty is payable stating that the bearer of the warrant is entitled to the shares therein specified and may provide by coupons or otherwise for the payment of dividends, or other moneys, on the shares included in the warrant. 42. A share warrant shall entitle the bearer to the shares included in it and the shares shall be transferred by the delivery of the share warrant, and the provisions of the Regulations of the company with respect to transfer and transmission of shares shall not apply thereto. 43. The bearer of a share warrant shall, on surrender of a warrant to the company for cancellation, and on payment of such sum as the director may from time to time prescribe, be entitled to have his name entered as a member in the register of members in respect of the shares included in the warrant. 44. The bearer of a share warrant may at any time deposit the warrant at the office of the company, and so long as the warrant remains so deposited the depositor shall have the same right of signing a requisition for calling a meeting of the company, and of attending and voting and exercising the other privileges of a member at any meeting held after the expiration of two clear days from the time of the deposit, as if his name were inserted in the register of members as the holder of the shares included in the deposited warrant. Not more than one person shall be recognised as depositor of the share warrant. The company shall, on two days’ written notice, return the deposited share warrant to the depositor. 45. Subject as herein otherwise specially provided no person shall as bearer of a share warrant, sign a requisition for calling a meeting of the company, or attend, or vote, or exercise any other privilege of a member at a meeting of the company, or be entitled to receive any notice from the company; but the bearer of a share warrant shall be entitled in all other respects to the same privileges and advantages as if he were named in the register of members as the holder of the shares included in the warrant, and he shall be a member of the company. 46. The directors may from time to time make rules as to the terms on which (if they shall think fit) a new share warrant or coupon may be issued by way of renewal in case of defacement, loss, or destruction.

ALTERATION OF CAPITAL 47. The directors may, with the sanction of an extraordinary resolution of the company, increase the capital by such sum, to be divided into shares of such amount, as the resolution shall prescribe. 48. Subject to any direction to the contrary that may be given by the resolution sanctioning the increase of share capital, and subject also to the provisions of section 83 of the Act, all new shares shall before issue, be offered to such persons as at the date of the offer are entitled to receive notices from the company of general meetings in proportion, as nearly as the circumstances admit, to the amount of the existing shares to which they are entitled. The offer shall be made by notice specifying the number of shares offered, and limiting a time within which the offer if not accepted, will be deemed to be declined, and after the expiration of that time, or on the receipt of an intimation from the person to whom the offer is made that he declines to accept the shares offered, the directors may dispose of the same in such manner as they think most beneficial to the company. The directors may likewise so dispose of any new shares which (by reason of the ratio which the new shares bear to shares held by persons entitled to an offer of new shares) cannot, in the opinion of the directors, be conveniently offered under this article.

49. The new shares shall be subject to the same provisions with reference to the payment of calls, lien, transfer, transmission, forfeiture and otherwise as the shares in the original capital.

50. The company may, by special resolution —

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(a) consolidate and divide its share capital into shares of larger amount than its existing shares; (b) by sub-division of its existing shares, or any of them, divide the whole, or any part, of its share capital into shares of smaller amount than is fixed by the memorandum of association, subject, nevertheless, to section 39(1)(a) of the Act; (c) cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person; (d) reduce its share capital in any manner and with, and subject to, any incident authorised, and consent required, by law.

BORROWING POWERS

51. The directors may in their discretion, from time to time, raise or borrow from the members or other persons any sum or sums of money for the purposes of the company: Provided that the moneys so raised or borrowed shall not without the sanction of a special resolution exceed one-half the issued share capital for the time being of the company.

52. The directors may raise or secure the repayment of such moneys in such manner and upon such terms and conditions in all respects as they think fit, and in particular by the execution of mortgage bonds, the issue of debentures, or debenture stock of the company charged upon all or any part of the property and rights of the company, both present and future, including its uncalled capital.

53. If any uncalled capital of the company is included in or charged by any mortgage bond or other security, the directors may delegate to any person a trustee for the person in whose favour the mortgage bond or security is executed, the power to make calls on members in respect of such uncalled capital, and to sue in the name of the company or otherwise for the recovery of the moneys becoming due in respect of calls so made and to give valid receipts for such moneys, and the power so delegated shall subsist during the continuance of the mortgage bond or security, notwithstanding any change in the directors, and shall be assignable if expressed so to be.

GENERAL MEETINGS

54. The statutory general meeting of the company shall be held within the period required by section 62 of the Act.

55. A general meeting shall be held once in every year at such time and place as may be prescribed by the company in general meeting, or in default, at such time in the month following that in which the anniversary of the company’s incorporation occurs, and at such place, as the directors shall appoint. In default of a general meeting being so held, a general meeting shall be held in the month next following, and may be convened by any two members in the same manner as nearly as possible as that in which meetings are to be convened by the directors.

56. The above-mentioned general meetings shall be called ordinary meetings; all other general meetings shall be called extraordinary.

57. The directors may, whenever they think fit, convene an extraordinary general meeting, and extraordinary general meetings shall also be convened on such requisition, or, in default, may be convened by such requisitions as provided by and subject to the provisions of section 63 of the Act. If at any time there shall not be within Swaziland sufficient directors capable of acting to form a quorum, any director or any two members of the company may convene an extraordinary general meeting in the same manner as nearly as possible as that in which meetings may be convened by the directors.

PROCEEDINGS AT GENERAL MEETINGS

58. Subject to the provisions of section 65 of the Act, seven days’ notice at least (exclusive of the day on which the notice is served, or deemed to be served but inclusive of the day for which notice is given) specifying the place, the day, and the hour of meeting and, in case of special business, the general nature of such business shall be given in manner hereinafter mentioned, or in such other manner (if any), as may be prescribed by the company in general meeting, to such persons as are, under the Regulations of the company, entitled to receive such notices from the company; but the non-receipt of such notice by any member shall not invalidate the proceedings at any general meeting.

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59. All business shall be deemed special that is transacted at an extraordinary meeting, and all that is transacted at an ordinary meeting, with the exception of sanctioning a dividend, the consideration of the accounts, balance-sheets, and the ordinary report of the directors and auditors, the election of directors and other officers in the place of those retiring by rotation, and the fixing of the remuneration of the auditors.

60. No business shall be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business; save as herein otherwise provided, a person or persons entitled under these Regulations to vote and holding not less than one-sixtieth of the issued share capital of the company and personally present at the meeting shall be a quorum.

61. If within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of members, shall be dissolved; in any other case it shall stand adjourned to the same day in the next week, at the same time and place or, if that day be a public holiday, to the next succeeding day other than a public holiday, and if at such adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the members present shall be a quorum.

62. The chairman, if any, of the board of directors shall preside as chairman at every general meeting of the company.

63. If there is no such chairman, or if at any meeting he is not present, within fifteen minutes after the time appointed for holding the meeting, or is unwilling to act as chairman, the members present shall choose some one of their number to be chairman.

64. The chairman may, with the consent of any meeting at which a quorum is present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting is adjourned for ten days or more notice of the adjourned meeting shall be given as in the case of an original meeting. Save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.

65. At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show of hands) demanded, in case the resolution be proposed as a special or extraordinary resolution by a person or persons entitled under these Regulations to vote and holding not less than one- sixtieth of the share capital represented at the meeting and, unless a poll is so demanded a declaration by the chairman that a resolution has, on a show of hands, been carried or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the book of the proceedings of the company, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution.

66. If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. In computing the majority on the poll regard shall be had to the number of votes to which each member is entitled under these Regulations. Scrutineers shall be elected to declare the result of the poll, and their decision, which shall be given by the chairman of the meeting, shall be final.

67. In the case of an equality of votes, whether on a show of hands, or on a poll, the chairman of the meeting at which the show of hands takes place, or at which the poll is demanded, shall be entitled to a second or casting vote.

68. A poll demanded on the election of a chairman, or on a question of adjournment, shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairman of the meeting directs. The demand for a poll shall not prevent the continuation of the meeting for the transaction of any business other than the question upon which the poll has been demanded.

VOTES OF MEMBERS

69. On a show of hands every member present in person shall have one vote. On a poll every member shall have one vote for each share of which he is the holder.

70. In the case of joint holders the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders; and for this purpose seniority shall be determined by the order in which the names stand in the register of members.

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71. The parent or guardian of a minor, and the curator bonis of a lunatic member, and also any person entitled under the transmission clause to transfer any shares, may vote at any general meeting in respect thereof in the same manner as if he were the registered holder of those shares provided that forty-eight hours at least before the time of holding the meeting at which he proposes to vote he shall have satisfied the directors that he is such parent, guardian or curator or that he is entitled under the transmission clause to transfer those shares, or that the directors have previously admitted his right to vote in respect of those shares. Several executors of a deceased member in whose name shares stand in the register shall, for the purpose of this Regulation, be deemed joint holders of those shares. 72. No member shall be entitled to vote at any general meeting unless all calls or other sums presently payable by him in respect of shares in the company have been paid. 73. On a poll votes may be given either personally or by proxy. 74. The instrument appointing a proxy shall be in writing under the hand of the appointer or of his agent duly authorised in writing, or, if the appointer is a corporate body, under the hand of an officer or agent authorised by the body. No person shall act as a proxy unless either he is entitled on his own behalf to be present and vote at the meeting at which he acts as proxy, or he is appointed to act at that meeting as proxy for a corporate body. The holder of a general or special power of attorney given by a shareholder shall be entitled to vote, if duly authorised under that power to attend and take part in the meetings and proceedings of the company, whether or not he be himself a shareholder in the company. 75. The instrument appointing a proxy and the power of attorney or other authority, if any, under which it is signed, or a notarially certified copy of such power or authority shall be deposited at the registered office of the company not less than forty-eight hours before the time for holding the meeting at which the person named in the instrument proposes to vote, and in default the instrument of proxy shall not be treated as valid. No instrument appointing a proxy shall be valid after the expiration of six months from the date when it was signed, unless so specifically stated in the proxy itself, and no proxy shall be used at an adjourned meeting which could not have been used at the original meeting. 76. An instrument appointing a proxy may be in the following form or in any other form which the directors shall approve: Company, Limited. I………………….of………………………….being a member of the…………………………………………………… Company, Limited, hereby appoint………………..of…………………………as my proxy……………………………. to vote for me and on my behalf at the (ordinary or extraordinary, as the case may be) general meeting of the company to be held on the………………………………………………………day of………………………………….and at any adjournment thereof. Signed this………………………..day of……………………….19…….. .

DIRECTORS 77. The number of directors and the names of the first directors, shall be determined in writing by a majority of the subscribers of the memorandum of association. 78. The remuneration of the directors shall from time to time be determined by the company in general meeting. 79. If any director be called upon to perform extra services or to make any special exertions in going or residing abroad, or otherwise, for any of the purposes of the company, the company may remunerate that director either by a fixed sum or by a percentage of profits or otherwise as may be determined, and such remuneration may be either in addition to, or in substitution for his or their share in the remuneration determined under the last preceding Regulation.

80. The qualification of a director shall be the holding of at least one share in the company, and it shall be his duty to comply with the provisions of section 71 of the Act.

ALTERNATE DIRECTORS

81. Each director shall have the power to nominate one of the shareholders possessing the necessary qualifications of a director, to act as alternate director in his place during his absence of inability to act as such director, and provided that the appointment of an alternate director shall be approved of by the board and on such appointment being made, the alternate

609 director shall, in all respects, be subject to the terms, qualifications, and conditions, existing with reference to the other directors of the company.

82. The alternate directors, whilst acting in the place of the directors who appointed them, shall exercise and discharge all the duties and functions of the directors they represent. The appointment of an alternate director shall be cancelled, and the alternate director shall cease to hold office whenever the director who appointed him shall cease to be a director, or shall give notice to the secretary of the company that the alternate director representing him shall have ceased to do so, and in case of the disqualification or resignation of any alternate director during the absence or inability to act of the director whom he represents, the vacancy so arising shall be filled by the chairman of the time being of the directors nominating a duly qualified shareholder to fill the same, subject to approval of the board.

POWERS AND DUTIES OF DIRECTORS

83. The business of the company shall be managed by the directors who may pay all expenses incurred in getting up and registering the company, and may exercise all such powers of the company as are not by the Act, or any amendment thereof for the time being in force, or by these articles, required to be exercised by the company in general meeting, subject nevertheless to any Regulation of these Regulations, to the provisions of the said Laws, and to such Regulations being not inconsistent with the aforesaid Regulations or provisions, as may be prescribed by the company in general meeting; but no Regulation made by the company in general meeting shall invalidate any prior act of the directors which would have been valid if such Regulation had not been made.

84. The directors may from time to time appoint one or more of their body to the office of managing director or manager for such term, and at such remuneration (whether by way of salary, or commission, or participation in profits, or partly in one way, and partly in another) as they may think fit and a director so appointed shall not, while holding such office, be subject to retirement by rotation, or taken into account in determining the rotation of retirement of directors; but his appointment shall be subject to determination ipso facto if he shall cease from any cause to be a director, or if the company in general meeting shall resolve that his tenure of the office of managing director or manager be determined.

85. The directors may from time to time entrust to or confer upon a managing director or manager for the time being such of the powers and authorities vested in them, as they may think fit, and may confer such powers and authorities for such time and be exercised for such objects and purposes and upon such terms and conditions and with such restrictions as they may think expedient; and they may confer such powers and authorities either collaterally or to the exclusion of, and in substitution for, all or any of the powers and authorities of the directors in that behalf and may from time to time revoke or vary all or any of such powers and authorities.

86. The amount for the time being remaining undischarged of moneys borrowed or raised by the directors for the purposes of the company (otherwise than by the issue of share capital) shall not at any time exceed one-half the issued share capital of the company without the sanction of the company in general meeting.

87. The directors shall duly comply with the provisions of the Act, or any statutory modification thereof for the time being in force, and in particular the provisions in regard to keeping a register of the directors, and in regard to sending to the Registrar of Companies an annual list of members, and a summary of particulars relating thereto, and notice of any consolidation or increase of share capital, or conversion of shares into stock, and copies of special resolutions and a copy of the register of directors and notifications of any charges therein.

88. The directors shall cause minutes to be made in books provided for the purpose — (a) of all appointments of officers made by the directors; (b) of the names of the directors present at each meeting of the directors and of any committee of the directors; (c) of all resolutions and proceedings at all meetings of the company, and of the directors, and of committees of directors; and every director present at any meeting of directors or committee of directors shall sign his name in a book to be kept for that purpose.

FOREIGN COMMITTEES

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89. The directors may from time to time appoint persons resident in a foreign country to be a foreign committee for the company in that country and may appoint transfer offices of the company in any foreign country and close the same at their direction, and may appoint and remove agents to represent the company in a foreign country for the issue, sub-division, and transmission of shares of the company, subject to the provisions of these Regulations, and for such other purposes as the directors may, subject to these Regulations, determine. The directors may further give to the members of a foreign committee or such agents the power to appoint alternate committee men or substitute agents to act during their absence and remove such alternate committee men and substitute agents and appoint others or themselves again to act for the company, and may grant to such committee men or agents the power to appoint other persons as co-committee-men or joint agents.

90. The directors may act on a foreign committee whenever temporarily in the foreign country in which the committee is appointed, and may take part in the proceedings of such committee and have the same rights and privileges as any member of the committee permanently resident in that foreign country.

91. A foreign committee may — (a) appoint a transfer office of the company in the foreign country for which it is appointed and pay the rent and other expenses connected therewith; (b) engage and at their discretion remove or suspend a secretary, clerks, and servants in connection with the business of the company in a foreign country for which it is appointed and determine their duties and pay their salaries as fixed by the directors of the company; (c) execute and sign transfers of shares in the foreign country for which it is appointed and do any act or thing necessary for effecting the transmission of such shares; (d) issue and sign new certificates relating to shares transferred or to be transferred at the transfer office of the country for which the committee is appointed, replace any existing share certificates, sub-divide shares, or replace defaced or worn-out certificates upon production thereof to the committee and if any such certificate or any cheque, dividend warrant, or other document be lost or destroyed, the committee may upon proof to its satisfaction of the loss or destruction and on receiving such indemnity and giving such advertisement as it deems adequate, issue and sign a new certificate, dividend, warrant, cheque, or other document in lieu thereof. A foreign committee may charge fees and expenses in respect of all or any of the acts mentioned in this paragraph which may from time to time be payable under these Regulations and may by its committee or its secretary give valid receipts for such fees. Every certificate relating to shares transferred at the transfer office in the country for which the committee is appointed shall be signed by two members of that committee and countersigned by its secretary or like officer; (e) issue shares and certificates therefor when thereto authorised by resolution of the board of directors in such manner or form as the directors may from time to time prescribe, subject to the provisions of these Regulations; (f) do in the name of and on behalf of the company all such acts and things not specifically mentioned in these Regulations as may in the judgment of the committee be necessary or convenient for the exercise of any of the committee’s powers.

92. Each member of a foreign committee may appoint an alternative committee man to act with full power during his own absence or inability to act, provided the appointment be confirmed by the foreign committee.

93. It shall not be necessary for a member of a foreign committee to be a shareholder of the company.

94. The meetings, proceedings, and acts of a foreign committee shall be governed by the provisions of these Regulations relating to meetings, proceedings, and acts of directors so far as the same are applicable and are not superseded by any express powers vested from time to time in the foreign committee by the creditors.

DISQUALIFICATIONS OF DIRECTORS

95. The office of director shall be vacated — if he gives one month’s notice in writing to the board of directors of his intention to resign office and his resignation be accepted by them;

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if he ceases to be a director by virtue of section 71 of the Act; or if he holds any other office of profit under the company except that of managing director or manager; or if he becomes insolvent or assigns his estate for the benefit of or compounds with his creditors; or if he is found lunatic or becomes of unsound mind; or if he is absent from four consecutive meetings of the directors without special leave of absence given by the board provided all such four meetings be not held within a period of thirty days; provided further that the board may not grant such special leave for more than six consecutive months unless the director is to be absent on the business of the company; this sub-clause shall not apply to a director represented by an alternative director; or if he is concerned or participate in the profits of any contract with the company: Provided that no director shall vacate his office by reason of his being a member of any company which has entered into contracts with or done any work for the company of which he is a director if he has fully disclosed to the board of directors his interest in such contract or work; but a director shall not vote in respect of such contract or work, and if he does so vote his vote shall not be counted.

ROTATION OF DIRECTORS

96. At the first ordinary meeting of the company the whole of the directors shall retire from office, and at the ordinary meeting in every subsequent year one-third of the directors for the time being, or if their number is not three or a multiple of three, then the number nearest to one-third, shall retire from office.

97. The directors to retire in every year shall be those who have been longest in office since their last election, but as between persons who became directors on the same day those to retire shall, unless they otherwise agree among themselves, be determined by lot.

98. A retiring director shall be eligible for re-election.

99. The company at the general meeting at which a director retires in manner aforesaid may fill up the vacated office by electing a person thereto.

100. If at any meeting at which an election of directors ought to take place the places of the vacating directors are not filled up, the meeting shall stand adjourned till the same day in the next week at the same time and place, and if at such adjourned meeting the places of the vacating directors are not filled up the vacating directors, or such of them as have not had their places filled up, shall be deemed to have been re-elected at such adjourned meeting.

101. The company may from time to time in general meeting increase or reduce the number of directors, and may also determine in what rotation such increased or reduced number is to go out of office.

102. Unless the shareholders otherwise determine in general meeting any casual vacancy occurring in the board of directors may be filled up by the directors, but the person so chosen shall be subject to retirement at the same time as if he had become a director on the day on which the director in whose place he is appointed was last elected a director.

103. The directors shall have power at any time, and from time to time, to appoint a person as an additional director who shall retire from office at the next following ordinary general meeting, but shall be eligible for election by the company at that meeting as an additional director.

104. The company may by extraordinary resolution remove any director before the expiration of his period of office, and may by an ordinary resolution appoint another person in his stead; the person so appointed shall be subject to retirement at the same time as if he had become a director on the day on which the director in whose place he is appointed was last elected a director.

PROCEEDINGS OF DIRECTORS

105. The directors may meet together for the dispatch of business, adjourn and otherwise regulate their meetings as they think fit. Questions arising at any meeting shall be decided by a majority of votes. In case of an equality of votes the

612 chairman shall have a second or casting vote. A director may, and the secretary on the requisition of a director shall, at any time summon a meeting of the directors.

106. The quorum necessary for the transaction of the business of the directors may be fixed by the directors, and unless so fixed shall (when the number of directors exceeds three) be three.

107. The continuing directors may act notwithstanding any vacancy in their body, but, if and so long as their number is reduced below the number fixed by or pursuant to the Regulations of the company as the necessary quorum of directors the continuing directors may act for the purpose of increasing the number of directors to that number, or of summoning a general meeting of the company, but for no other purpose.

108. The directors may elect a chairman of their meetings and determine the period for which he is to hold office; but if no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for holding the same, the directors present may choose one of their number to be chairman of the meeting.

109. The directors may delegate any of their powers to committee consisting of such member or members of their body as they think fit; any committee so formed shall, in the exercise of the powers so delegated, conform to any Regulations that may be imposed on them by the directors.

110. A committee may elect a chairman of their meetings; if no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for holding the same, the members present may choose one of their number to be chairman of the meeting.

111. A committee may meet and adjourn as they think proper. Questions arising at any meeting shall be determined by a majority of votes of the members present, and in case of an equality of votes the chairman shall have a second or casting vote.

112. All acts done by any meeting of the directors or of a committee of directors, or by any person acting as a director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such directors or persons acting as aforesaid, of that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a director.

DIVIDENDS BONUS AND RESERVE

113. The company in general meeting may declare dividends.

114. The directors may from time to time pay to the members such interim dividends as appear to the directors to be justified by the profits of the company.

115. No dividend shall be paid otherwise than out of profits.

116. Subject to the rights of persons (if any) entitled to shares with special rights as to dividends, all dividends shall be declared and paid according to the amounts paid on the shares, but if and so long as nothing is paid up on any of the shares in the company dividends may be declared and paid according to the amounts of the shares. No amount paid on a share in advance of calls shall, while carrying interest, be treated for the purpose of this article as paid on the share.

117. The directors may, before recommending any dividend, set aside out of the profits of the company such sums as they think proper as a reserve or reserves, which shall, at the discretion of the directors be applicable for meeting contingencies or for equalising dividends, or for any other purpose to which the profits of the company may be properly applied and pending such application may, at the like discretion, either be employed in the business of the company or be invested in such investments (other than shares of the company) as the directors may from time to time think fit.

118. If several persons are registered as joint holders of any share any one of them may give effectual receipts for any dividend payable on the share.

119. Notice of any dividend that may have been declared shall be given in manner hereinafter mentioned to the persons entitled to share therein.

120. The directors may deduct from the dividends or bonus payable to any member of all such claims or sums of money which may be due from time to time to the company on account of calls or otherwise. No dividend or bonus shall bear 613 interest against the company, and any dividend or bonus remaining unclaimed for a period of five years from this declaration may, provided notice of this declaration has been given by advertisement to the person entitled thereto and sent to his last registered address, be forfeited by resolution of the directors for the benefit of the company.

121. Every dividend or bonus may be paid by cheque, warrant, coupon, or otherwise as the directors may from time to time determine, and shall, if paid otherwise than by coupon, either be sent by post to the last registered address of the member entitled thereto, or be given to him personally, and the receipt or endorsement on the cheque or warrant of the person whose name appears in the register as the shareholder, or his duly authorised agent or the surrender of any coupon shall be a good discharge to the company in respect thereof.

122. The company shall not be responsible for the loss in transmission of any cheque, warrant, coupon, or other document sent through the post to the registered address of any member, whether or not it was sent at his request.

ACCOUNTS

123. The directors shall cause true accounts to be kept — (a) of the sums of money received and expended by the company and the matter in respect of which such receipt and expenditure takes place; and (b) of the assets and liabilities of the company.

124. The books of account shall be kept at the registered office of the company or at such other place or places as the directors think fit, and shall always be open to the inspection of the directors.

125. The directors shall from time to time determine whether and to what extent and at what times and places and under what conditions or Regulations the accounts and books of the company or any of them shall be open to the inspection of members not being directors, and no member (not being a director) shall have any right of inspecting any account or book or document of the company except as conferred by statute or authorised by the directors or by the company in general meeting.

126. Once at least in every year the directors shall lay before the company, in general meeting, a profit and loss account for the period since the preceding account or (in the case of the first account) since the incorporation of the company, made up to a date not more than six months before such meeting.

127. A balance-sheet shall be made out in every year and laid before the company in general meeting made up to a date not more than six months before such meeting. The balance-sheet shall be accompanied by a report of the directors as to the state of the company’s affairs, and the amount which they recommend to be paid by way of dividend, and the amount, if any, which they propose to carry to a reserve fund.

128. A copy of the balance-sheet and report shall, seven days previously to the meeting, be sent to the persons entitled to receive notices of general meetings in the manner in which notices are to be given hereunder.

AUDIT

129. Auditors shall be appointed and their duties regulated in accordance with sections 99 and 100 of the Act or any amendment thereof.

NOTICES

130. A notice may be given by the company to any member either by advertisement or personally, or by sending it through the post in a prepaid letter addressed to such member at his registered address within Swaziland. Any notice which may be given by advertisement shall be inserted in the Gazette and in such newspapers as the directors may from time to time determine.

131. Whenever a notice is to be given personally or sent by post, the notice may be given by the company to the joint holders of a share by giving the notice to the joint holder named first in the register in respect of the share.

132. Whenever a notice is to be given personally or sent by post the notice may be given by the company or the persons entitled to a share in consequence of the death or insolvency of a member by sending it through the post in a prepaid letter 614 addressed to them by name, or by the title of representatives of the deceased, or trustee of the insolvent or by any like description at the address (if any) in Swaziland supplied for the purpose by the persons claiming to be so entitled, or (until such an address has been so supplied) by giving the notice in any manner in which the same might have been given if the death or insolvency had not occurred.

133. Notice of every general meeting shall be given in some manner hereinbefore authorised to (a) every member of the company (including bearers of share warrants) except, in the case of notices to be given personally or sent by post, those members who have no registered address within Swaziland, and also to (b) every person entitled to a share in consequence of the death or insolvency of a member who, but for his death or insolvency, would be entitled to receive notice of the meeting. No other persons shall be entitled to receive notices of general meetings.

134. Any notice, if given by post, shall be deemed to have been served at the time when the letter containing the same is put into the Post Office, and any notice given by advertisement shall be deemed to have been given on the day upon which the advertisement was published in the Gazette, and, in proving the giving of the notice sent by post it shall be sufficient to prove that the letter containing the notice was properly addressed and put into the Post Office.

135. A notice given to any member shall be binding on all persons claiming on death, or by any transmission of his interests.

136. The signature to any notice given by the company may be written or printed, or partly written and partly printed.

137. When a given number of day’s notice or notice extending over any other period is required to be given, the day of service shall be counted in such number of days or period.

MISCELLANEOUS

138. If the provisions of these Regulations are in any way inconsistent with the provisions of the Act, or any other law, the provisions of that Act or other law shall prevail, and these Regulations shall be read in all respects subject to that Act or that other law.

FOURTH SCHEDULE (The Companies Act) Statement in lieu of prospectus lodged by………………………..Limited pursuant to section 80 of the Companies Act. Presented for filing by Limited.

STATEMENT IN LIEU OF PROSPECTUS

The nominal capital of the company E ...... Divided into ...... Shares of E...... each...... Shares of E...... each...... Shares of E...... each...... Shares of E...... each.

Names, descriptions and addresses of directors or proposed directors.

Minimum subscription (if any) fixed by the memorandum or articles of association on which the company may proceed to allotment.

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Number and amount of shares and debentures agreed 1 ...... shares of E...... paid. to be issued as fully or party paid up otherwise than 2 . . . . . shares upon which E . . . . in cash. per share credited as paid.

The consideration for the intended issue of such shares 3 ...... debenture ...... E . . . . and debentures. 4. Consideration.

Names and addresses of* vendors of property purchased or acquired, or proposed to be purchased or acquired by the company.

Amount (in cash shares or debentures) payable to each separate vendor.

Amount (if any) paid or payable in cash or shares or Total purchase price E ...... (if debentures) for any such property specifying ______amount (if any) paid or payable for goodwill. Cash ...... E ...... Shares ...... E ...... Debentures ...... E ...... ______Goodwill ...... E ...... ______...... E ______

* For definition of vendor see section 79(2) of the Companies Act. † See section 79 (3) of the Swaziland Companies Act. (Signature of the persons above named as directors or proposed directors or of their agents authorised in writing.) Amount (if any) paid or payable as commission for Amount paid ...... subscribing or agreeing to subscribe or procuring or Amount payable ...... agreeing to procure subscriptions for any shares or debentures in the company or Rate of such commission Rate per cent ......

Estimated amount of preliminary expenses E ......

Amount paid or intended to be paid to any promotor. Name of promotor ......

Amount E ......

Consideration for such payment Consideration ......

Dates of and parties to every material contract (other than contracts entered into in the ordinary course of the business intended to be carried on by the company or entered into more than two years before the filing of this statement).

Time and place at which such contracts or copies thereof may be inspected.

Names and addresses of the auditors of the company.

Full particulars of the nature and extent of the interest of every director in the promotion of or in the property proposed to be acquired by the company or

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where the interest of such a director consists in being a member of a partnership the nature and extent of the interest of the partnership with a statement of all sums paid or agreed to be paid to him or to the partnership in cash or shares or otherwise by any person either to induce him to become or to qualify him as a director or otherwise for services rendered by him or by the partnership in connection with the promotion or formation of the company.

Whether the articles contain any provisions precluding Nature of Provisions holders of shares or debentures receiving and inspecting balance sheets or reports of the auditors or other reports.

FIFTH SCHEDULE

MEETINGS OF CREDITORS AND CONTRIBUTORIES

1. The meetings of creditors and contributories shall be held within twenty-one days, or if a special manager has been appointed then within one month, after the date of the winding-up order, or within such further time as the Court may approve.

2. The Master shall summon the meeting by giving not less than seven days’ notice of the time and place thereof in the Gazette and in a paper circulating in Swaziland, and thereupon the liquidator shall send by post to every person appearing by the company’s books to be a creditor of the company notice of the meeting of creditors, and to every person appearing from the company’s books or otherwise to be a contributory of the company, notice of the meeting of contributories.

3. The liquidator shall also, as soon as practicable, send to each creditor mentioned in the company’s statement of affairs, and to each person appearing from the company’s books or otherwise to be a contributory of the company, a summary of the company’s statement of affairs, including the causes of its failure, and any observations thereon which the liquidator may think fit to make. The proceedings at a meeting shall not be invalidated by reason of any summary or notice required by these rules not having been sent or received before the meeting.

4. The meeting shall be held at such place as in the opinion of the Master is most convenient for the majority of the creditors and contributories.

5. The Master, or some person nominated by him, shall be the chairman at the meetings.

6. A person shall not be entitled to vote as a creditor unless he has duly proved a debt to be due to him from the company, and the proof has been duly lodged with the Master not later than the time mentioned for that purpose in the notice convening the meeting or adjourned meeting.

7. A creditor shall not vote in respect of any unliquidated or contingent debt, or any debt the value of which is not ascertained.

8. For the purpose of voting, a secured creditor shall, unless he surrenders his security, state in his proof the particulars of his security, the date when it was given, and the value at which he assesses it, and shall be entitled to vote only in respect of the balance (if any) due to him, after deducting the value of his security. If he votes in respect of his whole debt he shall be deemed to have surrendered his security, unless the Court on application is satisfied that the omission to value the security has arisen from inadvertence.

9. A creditor shall not vote in respect of any debt on or secured by a current bill of exchange or promissory note held by him, unless he is willing to treat the liability to him thereon of every person who is liable thereon antecedently to the company, and against whom a sequestration order in insolvency has not been made, as a security in his hands, and to estimate the value thereof, and for the purposes of voting, but not for the purposes of dividend, to deduct it from his proof.

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10. The liquidator may, within twenty-eight days after a proof estimating the value of a security as aforesaid has been used in voting at a meeting, require the creditor to give up the security for the benefit of the creditors generally on payment of the value so estimated, with an addition thereto of twenty per cent: Provided, that where a creditor has valued his security, he may at any time before being required to give it up, correct the valuation by a new proof, and deduct the new value from his debt, but in that case the said addition of twenty per cent shall not be made if the security is required to be given up.

11. The chairman shall have power to admit or reject a proof, but his decision shall be subject to appeal to the Court. If he is in doubt whether a proof should be admitted or rejected he shall mark it as objected to, and allow the creditor to vote, subject to the vote being declared invalid in the event of the objection being sustained.

12. A creditor or a contributory may vote either in person or by proxy.

13. Every instrument of proxy shall be in the prescribed form, and be issued by the liquidator, and every written part thereof shall be in the handwriting of the person giving the proxy or of any manager or clerk or other person in his regular employment, or of a justice of the peace.

14. General and special forms of proxy shall be sent to the creditors and contributories with the notice summoning the meeting, and neither the name nor description of an person shall be printed or inserted in the body of any instrument of proxy before it is so sent.

15. A creditor or contributory may give a general proxy to his manager or clerk, or any other person in his regular employment. In any such case the instrument of proxy shall state the relation in which the person to act thereunder stands to the creditor or contributory.

16. A creditor or contributory may give a special proxy to any person to vote at any specified meeting, or adjournment thereof — (a) for or against the appointment or continuance in office of any specified person, as liquidator or member of the committee of inspection; and (b) on all questions relating to any matter other than those above referred to and arising at the meeting or an adjournment thereof.

17. A proxy intended to be used at the first meeting of creditors or contributories, or an adjournment thereof, shall be lodged with the Master not later than the time mentioned for that purpose in the notice convening the meeting or adjourned meeting, which time shall not be earlier than twelve o’clock at noon of the day but one before nor later than twelve o’clock at noon of the day before the day appointed for that meeting, unless the Court otherwise directs.

18. Where it appears to the satisfaction of the Court that any solicitation has been used by or on behalf or a liquidator in obtaining proxies, or in procuring his appointment as liquidator except by the direction of a meeting of creditors or contributories, the Court, if it thinks fit, may order that no remuneration be allowed to the person by whom or on whose behalf the solicitation was exercised, notwithstanding any resolution of the committee of inspection, or of the creditors or contributories to the contrary.

19. The chairman may, with the consent of the meeting, adjourn it from time to time and from place to place.

20. A meeting may not act for any purpose except the proving of debts and the adjournment of the meeting, unless there are present or represented thereat, at least three creditors entitled to vote or three contributories, or all of the creditors or contributories if their number does not exceed three.

21. If within half an hour from the time appointed for the meeting a quorum of creditors or contributories is not present or represented, the meeting shall be adjourned to the same day in the following week at the same time and place, or to such other day as the chairman may appoint, not being less than seven or more than twenty-one days.

22. The chairman shall cause minutes of the proceedings at the meeting to be drawn up, and the minutes shall be signed by him and filed for record in the Master’s office. 23. No person acting either under a general or a special proxy shall vote in favour of any resolution which would directly or indirectly place himself, his partner or employer, in a position to receive any remuneration out of the estate of the 618 company otherwise than as a creditor rateably with the other creditors of the company. Provided that where any person holds special proxies to vote for an application to the Court in favour of the appointment of himself as liquidator he may use the said proxies and vote accordingly.

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THE BILLS OF EXCHANGE ACT Commentary

The preamble of this Act states that this is an Act to consolidate, amend and declare the law relating to bills of exchange, cheques and promissory notes. A bill of exchange as defined in section 3 is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to a specific person or bearer.

When a bill contains words prohibiting transfer or indicating an intention that it should not be transferable it is valid as between the parties thereto, but it is not negotiable. A bill that is negotiable may be payable either to order or to bearer.

Where the sum payable is expressed in words and in figures and there is a discrepancy between the two, the sum denoted by the words is the amount payable.

According to part III of the Act capacity to incur liability as a party to a bill is co-extensive with capacity to contract, and any person who signs a bill is liable as drawer, endorser or acceptor.

Valuable consideration for a bill may be constituted by a cause sufficient to support an action founded on contract or agreement, and an antecedent debt or liability, irrespective of whether the bill is payable on demand or at a future time.

Part V of the Act refers to the negotiation of bills and the requisites of a valid endorsement. It also lists and explains the different types of endorsements. Section 48 lays down the rules necessary to make a notice of dishonour valid and effectual. Section 49 lists excuses for non-notice and delay in giving notice of dishonour, for example where the delay is caused by circumstances beyond the control of the party giving notice and not imputable to his default, misconduct or negligence.

A bill is discharged by payment in due course or pro tanto by payment of part notified by endorsement on the bill if such payment be made by or on behalf of the drawee or acceptor. If a bill payable to order on demand is drawn on a banker and the banker pays the bill in good faith and in the ordinary cause of business, it is not incumbent on the banker to show that the endorsement of the payee or any subsequent endorsement was made by or under the authority of the person whose endorsement it purports to be, and the banker is deemed to have paid the bill in due course, although such endorsement has been forged or made without authority, provided that such endorsement does not purport to be that of a person who is a customer of the banker at the branch on which the said bill is drawn.

If a bill is lost before it is overdue the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving adequate security to the drawer if required to indemnify him against all persons whatever in case the bill alleged to have been lost is found again. The drawer, if he refuses to give such a duplicate bill may be compelled to do so.

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If a bill drawn in one country, is negotiated, accepted or payable in another the rights, duties, and liabilities of the parties thereto are determined as follows: The validity of a bill as regards requisites in form is determined by the law of the place of issue, and the validity as regards requisites in form of every supervening contract such as acceptance or endorsement is determined by the law of the place where such contract was made.

The Bills of Exchange Act, 1902

Date of commencement: 15th April, 1902.

Arrangement of Sections

PART I

PRELIMINARY 1. Short title. 2. Interpretation.

PART II

BILLS OF EXCHANGE — FORM AND INTERPRETATION 3. Bill of exchange defined. 4. Effect where different parties to the bill are the same person. 5. Address to drawee. 6. Certainty required as to payee. 7. What bills are negotiable. 8. Sum payable. 9. Bill payable on demand. 10. Bill payable at a future time. 11. Omission of date in bill payable after date. 12. Ante-dating and post-dating. 13. Computation of time of payment. 14. Case of need. 15. Optional stipulations by drawer or endorser. 16. Definition and requisites of acceptance. 17. Time for acceptance. 18. General and qualified acceptances. 19. Inchoate instruments. 20. Delivery.

PART III

CAPACITY AND AUTHORITY OF PARTIES 21. Capacity of parties. 22. Signature essential to liability. 23. Forged and unauthorised signatures. 24. Procuration signature. 25. As agent or in representative capacity.

PART IV 621

THE CONSIDERATION OF A BILL 26. Value and holder for value. 27. Accommodation bill or party. 28. Holder in due course. 29. Presumption of value and good faith.

PART V

NEGOTIATION OF BILLS 30. Negotiation of bill. 31. Requisites of a valid indorsement. 32. Conditional indorsement. 33. Indorsement in blank and special indorsement. 34. Restrictive indorsement. 35. Negotiation of overdue or dishonoured bill. 36. Negotiation of bill to party already liable thereon. 37. Rights of the holder.

PART VI

GENERAL DUTIES OF THE HOLDER 38. When presentment for acceptance is necessary. 39. Time for presenting bill payable after sight. 40. Rules as to presentment for acceptance and excuses for non-presentment. 41. Non-acceptance. 42. Dishonour by non-acceptance and its consequences. 43. Duties as to qualified acceptances. 44. Rules as to presentment for payment. 45. Excuses for delay or non-presentment for payment. 46. Dishonour by non-payment. 47. Notice of dishonour and effect of non-notice. 48. Rules as to notice of dishonour. 49. Excuses for non-notice and delay. 50. Noting or protest of bill. 51. Duties of holder as regards drawee or acceptor.

PART VII

LIABILITIES OF PARTIES 52. Liability of drawee not automatic. 53. Liability of acceptor. 54. Liability of drawer or indorser. 55. Stranger signing a bill liable as indorser. 56. Measure of damages against parties to dishonoured bill. 57. Transferor by delivery and transferee.

PART VIII

DISCHARGE OF BILL

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58. Payment in due course. 59. Banker paying demand draft where indorsement is forged. 60. Acceptor the holder at maturity. 61. Discharge by renunciation. 62. Discharge by cancellation. 63. Alteration of bill.

PART IX

ACCEPTANCE AND PAYMENT FOR HONOUR

64. Acceptance for honour supra protest. 65. Liability of acceptor for honour. 66. Presentment to acceptor for honour. 67. Payment for honour supra protest.

PART X

LOST INSTRUMENTS

68. Holder’s rights to duplicate of lost bill. 69. Action on lost bill.

PART XI

BILL IN A SET

70. Rules as to set.

PART XII

CONFLICT OF LAWS

71. Rules where laws conflict.

PART XIII

CHEQUES 72. Applicability to cheques of other provisions of the Act. 73. Presentment of cheque for payment. 74. Revocation of banker’s authority. 75. General and special crossings defined. 76. Crossings, by drawer or after issue. 77. Crossing a material part of cheque. 78. Duties of bankers as to crossed cheques. 79. Protection to banker and drawer where cheque is crossed. 80. Effect of crossing on holder. 81. True owner of stolen or lost crossed cheque marked “not negotiable” entitled to compensation from certain subsequent possessors. 82. Sections 75 to 81 to extend to documents other than cheques crossed for like object.

PART XIV

UNINDORSED OR IRREGULARLY INDORSED INSTRUMENTS

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83. Effect of payment to or crediting of accounts by bankers of amounts of unindorsed or irregularly indorsed cheques and certain other documents. 84. Rights of bankers if unindorsed or irregularly indorsed cheques or certain other documents are delivered to them for collection. 85. Evidential value of payment of unindorsed or irregularly indorsed cheques or certain other documents. 86. Negotiability of documents referred to in section 82(a), 82(b) and 85.

PART XV

PROMISSORY NOTES 87. Promissory note defined. 88. Delivery necessary. 89. Joint and several notes. 90. Note payable on demand. 91. Presentment of note for payment. 92. Liability of maker. 93. Application to notes of provisions relating to bills.

PART XVI

SUPPLEMENTARY 94. Good faith. 95. Signature. 96. Computation of time. 97. When noting equivalent to protest. 98. Protest when notary not accessible. 99. Dividend warrants and coupon for interest may be crossed. 100. Laws not to be affected by this Act.

An Act to consolidate, amend and declare the law relating to bills of exchange, cheques and promissory notes.

PART I

PRELIMINARY

Short title.

1. This Act shall be known and cited as the Bills of Exchange Act, No. 11 of 1902.

Interpretation.

2. In this Act, unless the context otherwise requires —

“acceptance” means an acceptance completed by delivery or notification;

“action” includes a counter claim, claim in reconvention and set-off;

“banker” includes a body of persons, whether incorporated or not, who carry on the business of banking;

“bearer” means the person in possession of a bill or note which is payable to bearer;

“bill” means bill of exchange;

“cheque” means a bill of exchange drawn on a banker payable on demand;

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“delivery” means transfer of possession, actual or constructive, from one person to another;

“holder” means the payee or endorsee of a bill or note, who is in possession of it, or the bearer thereof;

“indorsement” means an indorsement completed by delivery;

“issue” means the first delivery of a bill or note complete in form to a person who takes it as a holder;

“month” means calendar month;

“non-business days” include Sunday, and any day appointed by any law or under the authority of any law as a solemn fast or day of thanksgiving or as a public holiday;

“note” means promissory note;

“to note” is to make a notarial minute in accustomed form of the circumstances of dishonour, and at the time of dishonour, of a bill or note;

“payment in due course” means payment made at or after the maturity of a bill to the holder thereof, in good faith and without notice that his title to the bill is defective;

“value” means valuable consideration;

“written” includes printed;

“writing” includes print.

PART II

BILLS OF EXCHANGE. — FORM AND INTERPRETATION

Bill of exchange defined.

3. (1) A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to, or to the order of, a specified person, or to bearer. (2) An instrument which does not comply with these conditions or which orders any act to be done in addition to the payment of money is not a bill of exchange. (3) An order to pay out of a particular fund is not unconditional within the meaning of this section, but an unqualified order to pay coupled with — (a) an indication of a particular fund out of which the drawee is to reimburse himself or a particular account to be debited with the amount; or (b) a statement of the transaction which gives rise to the bill; or (c) a statement on the bill that it is drawn against specified documents attached thereto for delivery or acceptance or on payment of the bill as the case may be; or (d) a statement on the bill that it is drawn under or against a specified letter of credit or other similar authority, is unconditional. (4) A bill is not invalid by reason — (a) that it is not dated; (b) that it does not specify the value given or that any value has been given therefor; (c) that it does not specify the place where it is drawn or the place where it is payable.

Effect where different parties to the bill are the same person.

4. (1) A bill may be drawn payable to or to the order of the drawer; or it may be drawn payable to or to the order of the drawee.

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(2) Where in a bill drawer and drawee are the same person, or where the drawee is a fictitious person or a person not having capacity to contract, the holder may treat the instrument at his option either as a bill of exchange or as a promissory note.

Address to drawee.

5. (1) The drawee must be named or otherwise indicated in a bill with reasonable certainty. (2) A bill may be addressed to two or more drawees whether they are partners or not, but an order addressed to drawees in the alternative or to two or more drawees in succession is not a bill of exchange.

Certainty required as to payee.

6. (1) Where a bill is not payable to bearer the payee must be named or otherwise indicated therein with reasonable certainty. (2) A bill may be made payable to two or more payees jointly, or it may be made payable in the alternative to one of two or one or some of several payees. (3) A bill may also be made payable to the holder of an office for the time being. (4) Where the payee is a fictitious or non-existing person, or a person not having capacity to contract, the bill may be treated as payable to bearer.

What bills are negotiable.

7. (1) When a bill contains words prohibiting transfer or indicating an intention that it should not be transferable it is valid as between the parties thereto, but is not negotiable. (2) A negotiable bill may be payable either to order or to bearer. (3) A bill is payable to bearer which is expressed to be so payable or on which the only or last indorsement is an indorsement in blank. (4) A bill is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person, and does not contain words prohibiting transfer or indicating an intention that it should not be transferable. (5) Where a bill either originally or by indorsement is expressed to be payable to the order of a specified person and not to him or his order it is nevertheless payable to him or his order at his option.

Sum payable.

8. (1) The sum payable by a bill is a sum certain within the meaning of this Act although it is required to be paid — (a) with interest; (b) by stated instalments; (c) by stated instalments with a provision that upon default in payment of any instalment the whole shall become due; (d) according to an indicated rate of exchange to be ascertained as directed by the bill. (2) If the sum payable is expressed in words and also in figures and there is a discrepancy between the two the sum denoted by the words is the amount payable. (3) If a bill is expressed to be payable with interest unless the instrument otherwise provides interest runs from the date of the bill, and if the bill is undated from the issue thereof.

Bill payable on demand.

9. (1) A bill is payable on demand — (a) if it is expressed to be payable on demand or at sight, or on presentation; or (b) if no time for payment is expressed.

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(2) If a bill is accepted or indorsed when it is overdue it shall, as regards the acceptor who so accepts or any indorser who so desires it, be deemed a bill payable on demand.

Bill payable at a future time.

10. A bill is payable at a determinable future time within the meaning of this Act, which is expressed to be payable — (a) at a fixed period after date or sight; (b) on or at a fixed period after the occurrence of a specified event which is certain to happen though the time of happening may be uncertain. An instrument expressed to be payable on or after the occurrence of a specified event which may or may not happen is not a bill, and the happening of the event does not cure the defect.

Omission of date in bill payable after date.

11. If a bill expressed to be payable at a fixed period after date is issued undated, or if the acceptance of a bill, payable at a fixed period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the bill shall be payable accordingly: Provided that — (a) where the holder in good faith and by mistake inserts a wrong date; and (b) in every case where a wrong date is inserted if the bill subsequently comes into the hands of a holder in due course, the bill shall not be avoided thereby, but shall operate and be payable as if the date so inserted had been the true date.

Ante-dating and post-dating.

12. (1) If a bill or an acceptance or any indorsement on a bill is dated the date shall, unless the contrary be proved, be deemed to be the true date of the drawing, acceptance or indorsement as the case may be. (2) A bill is not invalid by reason only that it is ante-dated or post-dated, or that it bears date on a Sunday.

Computation of time of payment.

13. If a bill is not payable on demand the day on which it falls due is determined as follows: (a) if the date on which any bill would fall due shall be a non-business day the due date of the bill shall be the next business day; (b) there are no days of grace in Swaziland; (c) if a bill is payable at a fixed period after date, after sight or after the happening of a specified event the time of payment is determined by excluding the day from which the time is to begin to run and by including the day of payment; (d) if a bill is payable at a fixed period after sight the time begins to run from the date of the acceptance if the bill be accepted and from the date of noting or protest if the bill be noted or protested for non-acceptance or for non-delivery.

Case of need. l4. (1) The drawer of a bill or any indorser may insert therein the name of a person (hereinafter referred to as the “referee in case of need”) to whom the holder may resort in case of need; that is to say, in case the bill is dishonoured by non-acceptance or non-payment. (2) The holder may at his option resort to the referee in case of need or not as he may think fit.

Optional stipulations by drawer or indorser.

15. The drawer of a bill and any indorser may insert therein an express stipulation —

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(a) negativing or limiting his own liability to the holder; (b) waiving as regards himself some or all of the holder’s duties.

Definition and requisites of acceptance.

16. (1) The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. (2) An acceptance is invalid unless it complies with the following conditions, namely: (a) it must be written on the bill and be signed by the drawee, the mere signature of the drawee without additional words, however, being sufficient; (b) it must not express that the drawee will perform his promise by any other means than the payment of money.

Time for acceptance.

17. (1) A bill may be accepted — (a) before it has been signed by the drawer or while otherwise incomplete; (b) when it is overdue or after it has been dishonoured by a previous refusal to accept, or by non-payment. (2) If a bill payable after sight is dishonoured by non-acceptance and the drawee subsequently accepts it the holder in the absence of any different agreement is entitled to have the bill accepted as of the date of first presentment to the drawee for acceptance.

General and qualified acceptances.

18. (1) An acceptance is either general or qualified. (2) A general acceptance assents without qualification to the order of the drawer. (3) A qualified acceptance in express terms varies the effect of the bill as drawn, and in particular an acceptance is qualified which is — (a) conditional: that is to say, which makes payment by the acceptor dependent on the fulfilment of a condition therein stated; (b) partial: that is to say, an acceptance to pay part only of the amount for which the bill is drawn; (c) local: that is to say, an acceptance to pay only at a particular specified place. An acceptance to pay at a particular place is a general acceptance unless it expressly states that the bill is to be paid there only and not elsewhere; (d) qualified as to time; (e) the acceptance of some one or more of the drawees but not of all.

Inchoate instruments.

19. (1) If a simple signature on a blank paper to which a stamp has been affixed by the signer is delivered by him in order that it may be converted into a bill it operates as a prima facie authority to fill it up as a complete bill for any amount. (2) Such stamp shall cover using the signature for that of the drawer or the acceptor or an indorser; and in like manner when a bill is wanting in any material particular the person in possession of it has a prima facie authority to fill up the omission in any way he thinks fit. (3) In order that any such instrument when completed may be enforceable against any person who became a party thereto prior to its completion, it must be filled up within the time agreed on, or if no time be agreed on then within a reasonable time and strictly in accordance with the authority given: Provided that if any such instrument after completion is negotiated to a holder in due course it shall be valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up within a reasonable time and strictly in accordance with the authority given. (4) For the purpose of sub-section (3) the question what a reasonable time is, is a question of act.

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Delivery.

20. (1) Every contract on a bill whether it be the drawer’s, the acceptor’s or an indorser’s, is incomplete and revocable until delivery of the instrument in order to give effect thereto: Provided that where an acceptance is written on a bill and the drawee gives notice to or according to the directions of the person entitled to the bill that he has accepted it the acceptance then becomes complete and irrevocable. (2) As between immediate parties and as regards a remote party other than a holder in due course the delivery: (a) in order to be effectual shall be made either by or under the authority of the party drawing, accepting or indorsing, as the case may be; (b) may be shown to have been conditional or for a special purpose only and not for the purpose of transferring the property in the bill. (3) If a bill be in the hands of a holder in due course a valid delivery of the bill by all parties prior to him so as to make them liable to him is conclusively presumed. (4) If a bill is no longer in the possession of a party who has signed it as a drawer, acceptor or indorser, a valid and unconditional delivery by him is presumed until the contrary is proved.

PART III

CAPACITY AND AUTHORITY OF PARTIES

Capacity of parties.

21. (1) Capacity to incur liability as a party to a bill is co-extensive with capacity to contract: Provided that to the validity of a bill accepted or indorsed by a woman the renunciation of the benefits senatus consultum velleianum and authentica si qua mulier shall not be requisite. (2) Where a bill is drawn or indorsed by an infant or minor or corporation having no capacity or power to incur liability on a bill the drawing or indorsement entitles the holder to receive payment of the bill and to enforce it against any other party thereto.

Signature essential to liability.

22. No person is liable as drawer, indorser or acceptor of a bill who has not signed it as such: Provided that — (a) where a person signs a bill in a trade or assumed name he is liable thereon as if he had signed it in his own name; (b) the signature of the name of a firm is equivalent to the signature by the person so signing of the names of all persons liable as partners of that firm.

Forged and unauthorised signatures.

23. Subject to the provisions of this Act where a signature on a bill is forged or placed thereon without the authority of the person whose signature it purports to be the forged or unauthorised signature is wholly inoperative, and no right to retain the bill, or to give a discharge therefor, or to enforce payment thereof against any party thereto can be acquired through or under that signature unless the party against whom it is sought to retain or enforce payment of the bill is precluded from setting up the forgery or want of authority: Provided that nothing in this section shall affect the ratification of an unauthorised signature not amounting to forgery.

Procuration signature.

24. A signature by procuration operates as notice that the agent has but a limited authority to sign, and the principal is only bound by such signature if the agent in so signing was acting within the actual limits of his authority.

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As agent or in representative capacity.

25. (1) If a person signs a bill as drawer, indorser or acceptor and adds words to his signature indicating that he signs for or on behalf of a principal, or in a representative character, he is not personally liable thereon: Provided that if such person had no authority to sign for and on behalf of such principal or in a representative character he shall be personally liable on the said bill. (2) In determining whether a signature on a bill is that of a principal or that of the agent by whose hand it is written the construction most favourable to the validity of the instrument shall be adopted.

PART IV

THE CONSIDERATION OF A BILL

Value and holder for value.

26. (1) Valuable consideration for a bill may be constituted by — (a) any cause sufficient to support an action founded on contract or agreement; (b) an antecedent debt or liability, irrespective of whether the bill is payable on demand or at a future time. (2) If value has at any time been given for a bill the holder is deemed to be a holder for value as regards the acceptor and all parties to the bill who became parties prior to such time. (3) If the holder of a bill has a lien on it arising either from contract or by implication of law he is deemed to be a holder for value to the extent of the sum for which he has a lien.

Accommodation bill or party.

27. (1) An accommodation party to a bill is a person who has signed a bill as drawer, acceptor or indorser without receiving value therefor, and for the purpose of lending his name to some other person. (2) An accommodation party is liable on the bill to a holder for value; and it is immaterial whether when such holder took the bill he knew such party to be an accommodation party or not.

Holder in due course.

28. (1) A holder in due course is a holder who has taken a bill complete and regular on the face of it under the following conditions, namely: (a) that he became the holder of it before it was overdue, and without notice that it had previously been dishonoured if such was the fact; (b) that he took the bill in good faith and for value, and that at the time the bill was negotiated to him he had no notice of any defect in the title of the person who negotiated it. (2) In particular the title of a person who negotiates a bill is defective within the meaning of this Act when he obtained the bill or the acceptance thereof by fraud or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to fraud. (3) A holder, whether for value or not, who derives his title to a bill through a holder in due course, and who is not himself a party to any fraud or illegality affecting it has all the rights of that holder in due course as regards the acceptor and all parties to the bill prior to that holder.

Presumption of value and good faith.

29. (1) Every party whose signature appears on a bill is prima facie deemed to have become a party thereto for value. (2) Every holder of a bill is prima facie deemed to be a holder in due course: Provided that if in an action on a bill it is admitted or proved that the acceptance, issue or subsequent negotiation, of the bill is affected with fraud or illegality the burden of proof is shifted, unless and until the holder proves that subsequent to the alleged fraud or illegality value has in good faith been given for the bill.

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PART V

NEGOTIATION OF BILLS

Negotiation of bill.

30. (1) A bill is negotiated when it is transferred from one person to another in such a manner as to constitute the transferee the holder of the bill. (2) A bill payable to bearer is negotiated by delivery. (3) A bill payable to order is negotiated by the indorsement of the holder completed by delivery. (4) If the holder of a bill payable to his order transfers it for value without indorsing it the transfer gives the transferee such title as the transferor had in the bill, and the transferee in addition acquires the right to have the indorsement of the transferor. (5) If any person is under obligation to indorse a bill in a representative capacity he may indorse the bill in such terms as to negative personal liability.

Requisites of a valid indorsement.

31. (1) An indorsement in order to operate as a negotiation must comply with the following conditions, namely: (a) it must be written on the bill itself and be signed by the indorser, the simple signature of the indorser on the bill without additional words being sufficient. (b) it must be an indorsement of the entire bill, a partial indorsement (that is to say, an indorsement which purports to transfer to the indorsee a part only of the amount payable, or which purports to transfer the bill to two or more indorsees severally) not operating as a negotiation of the bill. (c) if a bill is payable to the order of two or more payees or indorsees who are not partners all must indorse unless the one indorsing has authority to indorse for the others. (d) if in a bill payable to order the payee or indorsee is wrongly designated or his name is mis-spelt, he shall indorse the bill as therein described, adding his proper signature. (e) if there are two or more indorsements on a bill, each indorsement is deemed to have been made in the order in which it appears on the bill until the contrary is proved. (f) an indorsement may be made in blank or special and may also contain terms making it restrictive. (2) An indorsement written on the allonge or on a “copy” of bill issued or negotiated in a country where copies are recognised is deemed to be written on the bill itself.

Conditional indorsement.

32. If a bill purports to be indorsed conditionally, the condition may be disregarded by the payer, and payment to the indorsee is valid whether the condition has been fulfilled or not.

Indorsement in blank and special indorsement.

33. (1) An indorsement in blank specifies no indorsee and a bill so indorsed becomes payable to bearer. (2) A special indorsement specifies the person to whom or to whose order the bill is to be payable. (3) The provisions of this Act relating to a payee apply with the necessary modifications to an indorsee under a special indorsement. (4) If a bill has been indorsed in blank, any holder may convert the blank indorsement into a special indorsement by writing above the indorser’s signature a direction to pay the bill to or to the order of himself or some other person.

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Restrictive indorsement.

34. (1) An indorsement is restrictive which prohibits the further negotiation of the bill, or which expresses that it is a mere authority to deal with the bill as thereby directed and not a transfer of the ownership thereof, as for example, if a bill be indorsed “Pay D. only”, or “Pay D. for the account of X” or “Pay D. or order for collection”. (2) A restrictive indorsement gives the indorsee the right to receive payment of the bill and to sue any party thereto that his indorser could have sued, but gives him no power to transfer his rights as indorsee unless it expressly authorise him to do so. (3) If a restrictive indorsement authorises further transfer, all subsequent indorsees take the bill with the same rights and subject to the same liabilities as the first indorsee under the restrictive indorsement.

Negotiation of overdue or dishonoured bill.

35. (1) If a bill is negotiable in its origin it continues to be negotiable until it has been — (a) restrictively indorsed; or (b) discharged by payment or otherwise. (2) If an overdue bill is negotiated it can only be negotiated subject to any defect of title affecting it at its maturity, and thence-forward no person who takes it can acquire or give a better title than that which the person from whom he took it had. (3) A bill payable on demand is deemed to be overdue within the meaning and for the purposes of this section when it appears on the face of it to have been in circulation for an unreasonable length of time. (4) The question what an unreasonable length of time for the purpose of subsection (4) is, is a question of fact. (5) Except where an indorsement bears date after the maturity of the bill, every negotiation is prima facie deemed to have been effected before the bill was overdue. (6) If a bill which is not overdue has been dishonoured, any person who takes it with notice of the dishonour takes it subject to any defect of title attaching thereto at the time of dishonour: Provided that nothing in this sub-section shall affect the rights of a holder in due course.

Negotiation of bill to party already liable thereon.

36. If a bill is negotiated back to the drawer, or to a prior indorser, or to the acceptor, such party may, subject to the provisions of this Act, re-issue and further negotiate the bill, but he is not entitled to enforce payment of the bill against any intervening party to whom he was previously liable.

Rights of the holder.

37. The rights and powers of the holder of the bill are as follows: (a) he may sue on the bill in his own name. (b) if he is a holder in due course he holds the bill free from any defect of title of prior parties, as well as from mere personal defences available to prior parties among themselves, and may enforce payment against all parties liable on the bill. (c) if the title is defective and — (i) he negotiates the bill to a holder in due course that holder obtains a good and complete title to the bill; or (ii) he obtains payment of the bill the person who pays him in due course gets a valid discharge for the bill.

PART VI

GENERAL DUTIES OF THE HOLDER

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When presentment for acceptance is necessary.

38. (1) If a bill is payable after sight, presentment for acceptance is necessary in order to fix the maturity of the instrument. (2) If a bill expressly stipulates that it shall be presented for acceptance, or where a bill is drawn payable elsewhere than at the residence or place of business of the drawee, it must be presented for acceptance before it can be presented for payment. (3) In no other case is presentment for acceptance necessary in order to render liable any party to the bill. (4) If the holder of a bill drawn payable elsewhere than at the place of business or residence of the drawee has not time with the exercise of reasonable diligence, to present the bill for acceptance before presenting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance before presenting it for payment is excused, and does not discharge the drawer and indorsers.

Time for presenting bill payable after sight.

39. (1) Subject to the provisions of this Act, if a bill payable after sight is negotiated, the holder must either present it for acceptance or negotiate it within a reasonable time. (2) If he does not do so the drawer and all indorsers prior to that holder are discharged. (3) In determining what is a reasonable time within the meaning of this section, regard shall be had to the nature of the bill, the usage of trade with respect to similar bills and the facts of the particular case.

Rules as to presentment for acceptance and excuses for non-presentment.

40. (1) A bill is duly presented for acceptance which is presented in accordance with the following rules: (a) The presentment must be made by or on behalf of the holder to the drawee, or to some person authorised to accept or refuse acceptance on his behalf, at a reasonable hour on a business day, and before the bill is overdue. (b) Where a bill is addressed to two or more drawees who are not partners, presentment must be made to them all unless one has authority to accept for all, then presentment may be made to him only. (c) Where the drawee is dead presentment may be made to his executor. (d) Where the drawee is insolvent or has assigned his estate, presentment may be made to him or his trustee or assignee. (e) A presentment through the post office, if in due course, is sufficient. (2) Presentment in accordance with these rules is excused, and a bill may be treated as dishonoured by non- acceptance if — (a) the drawee is dead, or insolvent, or is a fictitious person, or a person not having capacity to contract by bill; (b) after the exercise of reasonable diligence such presentment cannot be effected; (c) although the presentment has been irregular acceptance has been refused on some other ground. (3) The fact that the holder has reason to believe that the bill on presentment will be dishonoured does not excuse presentment.

Non-acceptance.

41. If a bill is duly presented for acceptance and is not accepted within the customary time, the person presenting it must treat it as dishonoured by non-acceptance, and if he does not the holder shall lose his right of recourse against the drawer and indorsers.

Dishonour by non-acceptance and its consequences.

42. (1) A bill is dishonoured by non-acceptance if —

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(a) it is duly presented for acceptance and such an acceptance as is prescribed by this Act is refused or cannot be obtained; or (b) presentment for acceptance is excused and the bill is not accepted. (2) Subject to the provisions of this Act, if a bill is dishonoured by non-acceptance, an immediate right of recourse against the drawer and indorsers accrues to the holder, and no presentment for payment is necessary.

Duties as to qualified acceptances.

43. (1) The holder of a bill may refuse to take a qualified acceptance, and if he does not obtain an unqualified acceptance may treat the bill as dishonoured by non-acceptance. (2) If a qualified acceptance is taken and the drawer or an indorser has not expressly or impliedly authorised the holder to take a qualified acceptance, or does not subsequently assent thereto, such drawer or indorser is discharged from his liability on the bill: Provided that the provisions of this sub-section do not apply to a partial acceptance whereof due notice has been given. (3) If a bill has been accepted as to part, it must be protested as to the balance. (4) When a drawer or indorser of a bill receives notice of a qualified acceptance, and does not within a reasonable time express his dissent to the holder, he shall be deemed to have assented thereto.

Rules as to presentment for payment.

44. (1) Subject to the provisions of this Act, a bill must be duly presented for payment, and if is not so presented the drawer and indorsers shall be discharged. (2) A bill is duly presented for payment which is presented in accordance with the following rules: (a) If the bill is not payable on demand presentment must be made on the day it falls due. (b) If the bill is payable on demand, then subject to the provisions of this Act presentment must be made within a reasonable time after its issue in order to render the drawer liable, and within a reasonable time after its indorsement in order to render an indorser liable. (c) Presentment must be made by the holder, or by some person authorised to receive payment on his behalf at a reasonable hour on a business day, at the proper place as hereinafter defined, either to the person designated by the bill as payer or to some person authorised to pay or refuse payment on his behalf, if with the exercise of reasonable diligence such person can there be found. (3) In determining what is a reasonable time for the purpose of sub-section 22(b) regard shall be had to the nature of the bill, the usage of trade with regard to similar bills, and the facts of the particular case. (4) A bill is presented at the proper place if — (a) a place of payment is specified in the bill and the bill is there presented; (b) no place of payment is specified, but the address of the drawee or acceptor is given in the bill and the bill is there presented; (c) no place of payment is specified, and no address given, and the bill is presented at the drawee’s or acceptor’s place of business if known, and if not at his ordinary residence if known; (d) in any other case, the bill presented to the drawee or acceptor wherever he can be found, or at his last- known place of business or residence. (5) If a bill is presented at the proper place, and after the exercise of reasonable diligence no person authorised to pay or refuse payment can be found there, no further presentment to the drawee or acceptor is required. (6) If a bill is drawn upon or accepted by two or more persons who are not partners and no place of payment is specified, presentment must be made to them all. (7) If the drawee or acceptor of a bill is dead and no place of payment is specified, presentment must be made to his executor if such there be, and with the exercise of reasonable diligence he can be found.

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(8) A presentment through the post office, if in due course, is sufficient.

Excuses for delay or non-presentment for payment.

45. (1) Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct or negligence: Provided that the cause of delay ceases to operate presentment must be made with reasonable diligence. (2) Presentment for payment is dispensed with — (a) if after the exercise of reasonable diligence presentment as required by this Act cannot be effected; (b) if the drawee is a fictitious person; (c) as regards the drawer if the drawee or acceptor is not bound as between himself and the drawer to accept or pay the bill, and the drawer has no reason to believe that the bill would be paid if presented; (d) as regards an indorser if the bill was accepted or made for the accommodation of that indorser and he has no reason to expect that the bill would be paid if presented; (e) by waiver of presentment, express or implied; (f) if the drawee or acceptor is insolvent, or has assigned his estate. (3) Subject to sub-section (2), the fact that the holder has reason to believe that the bill on presentment will be dishonoured does not dispense with the necessity for presentment.

Dishonour by non-payment.

46. (1) A bill is dishonoured by non-payment if — (a) it is duly presented for payment and payment is refused or cannot be obtained; or (b) presentment is excused and the bill is overdue and unpaid. (2) Subject to the provisions of this Act, when a bill is dishonoured by non-payment, an immediate right of recourse against the drawer and indorsers accrues to the holder.

Notice of dishonour and effect of non-notice.

47. Subject to the provisions of this Act, if a bill has been dishonoured by non-acceptance or by non-payment, notice of dishonour must be given to the drawer and each indorser, and any drawer or indorser to whom such notice is not given is discharged: Provided that if — (a) a bill is dishonoured by non-acceptance and notice of dishonour is not given, the rights of a holder in due course, subsequent to the omission, shall not be prejudiced by the omission; (b) a bill is dishonoured by non-acceptance and due notice of dishonour is given, it shall not be necessary to give notice of a subsequent dishonour by non-payment, unless the bill shall in the meantime have been accepted.

Rules as to notice of dishonour.

48. (1) Notice of dishonour, in order to be valid and effectual, must be given in accordance with the following rules: (a) the notice must be given by or on behalf of the holder, or by or on behalf of the indorser, who at the time of giving it is himself liable on the bill; (b) notice of dishonour may be given by an agent, either in his own name or in the name of any party entitled to give notice, whether that party be his principal or not; (c) if the notice is given by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior indorsers who have a right of recourse against the party to whom it is given; (d) if notice is given by or on behalf of an indorser entitled to give notice, as hereinbefore provided, it enures for the benefit of the holder and all indorsers subsequent to the party to whom notice is given; 635

(e) the notice may be given in writing, or by personal communication, and may be given in any terms which sufficiently identify the bill and intimate that the bill has been dishonoured by non-acceptance or non- payment; (f) the return of a dishonoured bill to the drawer or an indorser is in point of form deemed a sufficient notice of dishonour; (g) a written notice need not be signed, and an insufficient written notice may be supplemented and validated by verbal communication; (h) if notice of dishonour is required to be given to any person, it may be given either to the party himself or to his agent in that behalf; (i) if the drawer or indorser is dead and the party giving notice knows it, the notice must be given to an executor, if such there be, and with the exercise of reasonable diligence he can be found; (j) if the drawer or indorser is insolvent, notice may be given either to the person himself or to the person in whom his estate is by law vested; (k) if there are two or more drawers or indorsers who are not partners, notice must be given to each of them unless one of them has authority to receive such notice for the others; (1) the notice may be given as soon as the bill is dishonoured, and must be given within a reasonable time thereafter; (m) if a bill when dishonoured is in the hands of an agent, he may either himself give notice to the parties liable on the bill or he may give notice to his principal, and he give notice to his principal he must do so within the same time as if he were the holder, and the principal upon receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder. (2) For the purpose of sub-section (1)(e) in the absence of special circumstances it is deemed that where it is not given within a reasonable time unless notice is given or the notice is posted on the business day next after the day or where the bill is dishonoured. (3) A mis-description of the bill shall not vitiate the notice unless the party to whom the notice is given is in fact misled thereby. (4) If a party to a bill receives due notice of dishonour, he has after the receipt of such notice the same period of time for giving notice to antecedent parties that the holder has after dishonour. (5) If a notice of dishonour is duly addressed and posted, the sender is deemed to have given due notice of dishonour notwithstanding any miscarriage by the post office.

Excuses for non-notice and delay.

49. (1) Delay in giving notice of dishonour is excused where the delay is caused by circumstances beyond the control of the party giving notice and not imputable to his default, misconduct or negligence: Provided that if the cause of delay ceases to operate the notice must be given with reasonable diligence. (2) Notice of dishonour is dispensed with — (a) if after the exercise of reasonable diligence notice as required by this Act cannot be given to or does not reach the drawer or indorser sought to be charged; (b) by expressed or implied waiver, either before the time of giving notice has arrived, or after omission to give due notice; (c) as regards the drawer in the following cases namely — (i) where drawer and drawee are the same person; (ii) where the drawee is a fictitious person or a person not having capacity to contract; (iii) where the drawer is the person to whom the bill is presented for payment; (iv) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill;

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(v) where the drawer has countermanded payment; (d) as regards the indorser in the following cases, namely — (i) where the drawee is a fictitious person or a person not having capacity to contract and the indorser was aware of the fact at the time he indorsed the bill; (ii) where the indorser is the person to whom the bill is presented for payment; (iii) where the bill was accepted or made for his accommodation.

Noting or protest of bill.

50. (1) If a bill has been dishonoured by non-acceptance, it must be duly protested for non-acceptance, and if a bill which has not been previously dishonoured by non-acceptance is dishonoured by non-payment, it must be duly protested for non-payment. (2) If it be not so protested the drawer and indorsers are discharged, with the exception of the drawer or payee of a cheque on a banker as hereinafter defined. (3) A bill which has been protested for non-acceptance may be subsequently protested for non-payment. (4) Subject to this Act, when a bill is noted or protested it must be noted on the day of its dishonour: Provided that if a bill has been duly noted the protest may be subsequently extended as of the date of the noting. (5) If the acceptor of a bill becomes insolvent or assigns his estate or suspends payment before it matures the holder may cause the bill to be protested for better security against the drawer and indorsers. (6) A bill must be protested at the place where it is dishonoured: Provided that — (a) if a bill is presented through the post office and returned by post dishonoured it may be protested at the place to which it is returned and on the day of its return if received during business hours, and if not received during business hours then not later than the next business day; (b) if a bill drawn payable at the place of business or residence of some person other than the drawee has been dishonoured by non-acceptance it must, if protested, be protested for non-payment at the place where it is expressed to be payable, and no further presentment for payment to or demand on the drawee is necessary. (7) A protest must contain a copy of the bill and must be signed by the Notary making it, and must specify — (a) the person at whose request the bill is protested; (b) the place and date of protest, the cause or reason for protesting the bill; (c) the demand made and the answer given (if any), or the fact that the drawee or acceptor could not be found. (8) If a bill is lost or destroyed or is wrongly detained from the person entitled to hold it protest may be made on a copy or written particulars thereof. (9) Protest is dispensed with by any circumstance which would dispense with notice of dishonour. (10) Delay in noting or protesting is excused when the delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligency: Provided that if the cause of delay ceases to operate the bill must be noted or protested, when necessary, with reasonable diligence.

Duties of holder as regards drawee or acceptor.

51. (1) If a bill is accepted generally presentment for payment is not necessary in order to render the acceptor liable. (2) If by the terms of a qualified acceptance presentment for payment is required the acceptor, in the absence of an express stipulation to that effect, is not discharged by the omission to present the bill for payment on the day that it matures. (3) It is not necessary, in order to render the acceptor of a bill liable, to protest it or that notice of dishonour should be given to such acceptor.

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(4) When a holder of a bill presents it for payment he shall exhibit the bill to the person from whom he demands payment, and when a bill is paid the holder shall forthwith deliver it up to the party paying it.

PART VII

LIABILITIES OF PARTIES

Liability of drawee not automatic.

52. A bill of itself does not operate as an assignment of funds in the hands of the drawee available for the payment thereof, and the drawee of a bill who does not accept as required by this Act is not liable on the instrument.

Liability of acceptor.

53. The acceptor of a bill by accepting it — (a) engages that he will pay it according to the tenor of his acceptance; (b) is precluded from denying to a holder in due course — (i) the existence of the drawer, the genuineness of his signature and his capacity and authority to draw the bill; (ii) in the case of a bill payable to drawer’s order the then capacity of the drawer to indorse, but not the genuineness or validity of his indorsement; (iii) in the case of a bill payable to the order of a third person the existence of the payee and his then capacity to indorse, but not the genuineness or the validity of his indorsement.

Liability of drawer or indorser.

54. (1) The drawer of a bill by drawing it — (a) engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken; (b) is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse. (2) The indorser of a bill by indorsing it — (a) engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or a subsequent indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken; (b) is precluded from denying to a holder in due course the genuineness and regularity in all respects of the drawer’s signature and all previous indorsements; (c) is precluded from denying to his immediate or a subsequent indorsee that the bill was at the time of his indorsement a valid and subsisting bill, and that he had then a good title thereto.

Stranger signing a bill liable as indorser.

55. If a person signs a bill otherwise than as drawer or acceptor he thereby incurs the liabilities of an indorser to a holder in due course.

Measure of damages against parties to dishonoured bill.

56. If a bill is dishonoured the measure of damages, which shall be deemed to be liquidated damages, shall be as follows — (a) the holder may recover from any party liable on the bill, and the drawer who has been compelled to pay the bill may recover from the acceptor, and an indorser who has been compelled to pay the bill may recover from the acceptor or from the drawer or from a prior indorser — 638

(i) the amount of the bill; (ii) interest thereon in accordance with the stipulation (if any) in the bill, or from the time of presentment for payment if the bill is payable on demand, or from the maturity of the bill in any other case; (iii) the expenses of noting, and where the protest has been extended the expenses of the protest; (b) in the case of a bill which has been dishonoured abroad in lieu of the above damages the holder may recover from the drawer or an indorser, and the drawer or an indorser who has been compelled to pay the bill may recover from any party liable to him, the amount of the re-exchange, with interest thereon until the time of payment; (c) if by this Act interest may be recovered as damages such interest may, if justice require it, be withheld wholly or in part, and where a bill is expressed to be payable with interest at a given rate interest as damages may or may not be given at the same rate as interest proper.

Transferor by delivery and transferee.

57. (1) If the holder of a bill payable to bearer negotiates it by delivery without indorsing it he is called a transferor by delivery. (2) A transferor by delivery is not liable on the instrument. (3) A transferor by delivery who negotiates a bill thereby warrants to his immediate transferee, being a holder for value, that the bill is what it purports to be, that he has a right to transfer it and that at the time of transfer he is not aware of any fact which renders it valueless.

PART VIII

DISCHARGE OF BILL

Payment in due course.

58. (1) A bill is discharged by payment in due course or pro tanto by payment of part notified by indorsement on the bill if such payment be made by or on behalf of the drawee or acceptor. (2) Subject to sub-sections (3), (4) and (5), if a bill is paid by the drawer or an indorser it is not discharged. (3) If a bill payable to or to the order of a third party is paid by the drawer, the drawer may enforce payment thereof against the acceptor, but may not re-issue the bill. (4) If a bill is paid by an indorser, or where a bill payable to drawer’s order is paid by the drawer, the party paying it is remitted to his former rights as regards the acceptor or antecedent parties, and he may, if he thinks fit, strike out his own and subsequent indorsements and again negotiate the bill. (5) Where an accommodation bill is paid in due course by the party accommodated the bill is discharged.

Banker paying demand draft where indorsement is forged.

59. If a bill payable to order on demand is drawn on a banker and the banker pays the bill in good faith and in the ordinary course of business, it is not incumbent on the banker to show that the indorsement of the payee or any subsequent indorsement was made by or under the authority of the person whose indorsement it purports to be, and the banker is deemed to have paid the bill in due course, although such indorsement has been forged or made without authority: Provided such indorsement does not purport to be that of a person who is a customer of the banker at the branch on which the said bill is drawn.

Acceptor the holder at maturity.

60. If the acceptor of a bill is or becomes the holder of it at or after its maturity in his own right the bill is discharged.

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Discharge by renunciation.

61. (1) If the holder of a bill at or after its maturity absolutely and unconditionally renounced his rights against the acceptor the bill is discharged: Provided that the renunciation shall be in writing on the bill unless the bill is delivered up to the acceptor. (2) The liabilities of any party to a bill may in like manner be renounced by the holder before, at or after its maturity. (3) Nothing in this section shall affect the rights of a holder in due course without notice of the renunciation.

Discharge by cancellation.

62. (1) If a bill is intentionally cancelled by the holder or his agent, and the cancellation is apparent thereon, the bill is discharged. (2) Any party liable on a bill may be discharged by the intentional cancellation of his signature by the holder or his agent in which case any indorser who would have had a right of recourse against the party whose signature is cancelled is also discharged. (3) A cancellation made unintentionally or under a mistake or without the authority of the holder is inoperative: Provided that if where a bill or any signature thereon appears to have been cancelled the burden of proof lies on the party who alleges that the cancellation was made unintentionally or under a mistake or without authority.

Alteration of bill.

63. (1) If a bill or acceptance is materially altered then the liability of all parties who were parties to the bill at the date of alteration and who did not assent to it must be regarded as if the alteration had not been made; but any party who has himself made, authorised or assented to the alteration and all subsequent indorsers are liable on the bill as altered. (2) For the purpose of sub-section (1) material alterations include any alteration of the date, the sum payable, the time of payment, the place of payment, and where a bill has been accepted generally the addition of a place of payment, without the acceptor’s assent.

PART IX

ACCEPTANCE AND PAYMENT FOR HONOUR

Acceptance for honour supra protest.

64. (1) If a bill of exchange has been protested for dishonour by non-acceptance or protested for better security and is not overdue, any person, not being a party already liable thereon, may with the consent of the holder intervene and accept the bill supra protest for the honour of any party liable thereon or for the honour of the person for whose account the bill is drawn. (2) A bill may be accepted for honour for part only of the sum for which it is drawn. (3) An acceptance for honour supra protest in order to be valid must — (a) be written on the bill and indicate that it is an acceptance for honour; (b) be signed by the acceptor for honour. (4) If an acceptance for honour does not expressly state for whose honour it is made it is deemed to be an acceptance for the honour of the drawer. (5) If a bill payable after sight is accepted for honour its maturity is calculated from the date of noting for non- acceptance and not from the date of acceptance for honour.

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Liability of acceptor for honour.

65. (1) The acceptor for honour of a bill by accepting it engages that he will on due presentment pay the bill according to the tenor of his acceptance if it is not paid by the drawee, provided it has been duly presented for payment and protested for non-payment and that he receives notice of these facts. (2) The acceptor for honour is liable to the holder and to all parties to the bill subsequent to the party for whose honour he has accepted.

Presentment to acceptor for honour. 66. (1) If a dishonoured bill has been accepted for honour supra protest or contains a reference in case of need it must be protested for non-payment before it is presented for payment to the acceptor for honour or referee in case of need. (2) If the address of the acceptor for honour is in the same place where the bill is protested for non-payment the bill must be presented to him not later than the day following its maturity; and if the address of the acceptor for honour is in some place other than the place where it was protested for non-payment the bill must be posted or forwarded for presentment not later than the business day next following its maturity for presentment to him. (3) Delay in presentment or non-presentment is excused by any circumstances which would excuse delay in presentment for payment or non-presentment for payment. (4) When a bill of exchange is dishonoured by the acceptor for honour it must be protested for non-payment by him.

Payment for honour supra protest. 67. (1) If a bill has been protested for non-payment any person, not being a party already liable thereon, may intervene and pay it supra protest for the honour of any party liable thereon or for the honour of the person for whose account the bill is drawn. (2) If two or more persons offer to pay a bill for the honour of different parties the person whose payment will discharge most parties to the bill shall have the preference. (3) Payment for honour supra protest in order to operate as such and not as a mere voluntary payment must be attested by a notarial act of honour, which may be appended to the protest or from an extension of it. (4) The notarial act of honour must be founded on a declaration made by the payer for honour or his agent in that behalf, declaring his intention to pay the bill for honour and for whose honour he pays. (5) If a bill has been paid for honour all parties subsequent to the party for whose honour it is paid are discharged, but the payer for honour is substituted for and succeeds to both the rights and duties of the holder as regards the party for whose honour he pays and all parties liable to that party. (6) The payer for honour on paying to the holder the amount of the bill and the notarial expenses incidental to its dishonour is entitled to receive both the bill itself and the protest, and if the holder does not on demand deliver them up he shall be liable to the payer for honour in damages. (7) If the holder of a bill refuses to receive payment supra protest he shall lose his right of recourse against any party who would have been discharged by such payment.

PART X LOST INSTRUMENTS

Holder’s rights to duplicate of lost bill. 68. (1) If a bill is lost before it is overdue the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving adequate security to the drawer if required to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again. (2) If the drawer on such request as refuses to give such duplicate bill he may be compelled to do so.

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Action on lost bill.

69. In any action or proceeding upon a bill other than a proceeding for provisional sentence the court may order that the loss or non-production of the instrument shall not be set up by way of defence, provided an indemnity be given to the satisfaction of the court against the claims of any other person upon the instrument in question.

PART XI

BILL IN A SET

Rules as to set.

70. (1) If a bill is drawn in a set, each part of a set being numbered and containing a reference to the other parts, the whole of the parts constitutes one bill. (2) If a holder of a set indorses two or more parts to different persons, he is liable on every such part, and every indorser subsequent to him is liable on the part he has himself indorsed as if the said parts were separate bills. (3) If two or more parts of a set are negotiated to different holders in due course the holder whose title first accrues is as between such holders deemed the true owner of the bill: Provided that nothing in this sub-section shall affect the rights of a person who in due course accepts or pays the part first presented to him. (4) The acceptance may be written on any part, and it must be written on one part only, but if the drawee accepts more than one part, and such accepted parts get into the hands of different holders in due course he is liable on every such part as if it were a separate bill. (5) If the acceptor of a bill drawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a holder in due course, he is liable to the holder thereof. (6) Subject to this section, if any one part of a bill drawn in a set is discharged by payment or otherwise the whole bill is discharged.

PART XII

CONFLICT OF LAWS

Rules where laws conflict.

71. If a bill drawn in one country, is negotiated, accepted or payable in another the rights, duties, and liabilities of the parties thereto are determined as follows: (a) the validity of a bill as regards requisites in form is determined by the law of the place of issue, and the validity as regards requisites in form of every supervening contract such as acceptance or indorsement or acceptance supra protest is determined by the law of the place where such contract was made: Provided that — (i) where a bill is issued out of Swaziland it is not invalid by reason only that it is not stamped in accordance with the law of the place of issue; (ii) where a bill issued out of Swaziland conforms as regards requisites in form to the law of Swaziland it may for purposes of enforcing payment thereof be treated as valid as between all persons who negotiate, hold or become parties to it in Swaziland; (b) subject to the provisions of this Act the interpretation of the contract of the drawer, indorser, acceptor or acceptor supra protest of a bill is determined by the law of the place where such contract is made: Provided that where a bill drawn and payable in Swaziland is indorsed elsewhere the indorsement shall as regards the payer be interpreted according to the law of Swaziland;

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(c) the duties of the holder with respect to presentment for acceptance or payment and the necessity for or sufficiency of a protest or notice of dishonour or otherwise are determined by the law of the place where the act is done or the bill is dishonoured; (d) if a bill is drawn out of but payable in Swaziland and the sum payable is not expressed in currency of Swaziland the amount shall, in the absence of some express stipulation, be calculated according to the rate of exchange for sight drafts at the place of payment on the day the bill is payable; (e) if a bill is drawn in one country, and is payable in another the due date thereof is determined according to the law of the place where it is payable.

PART XIII

CHEQUES

Applicability to cheques of other provisions of the Act.

72. Except as otherwise provided in this Part the provisions of this Act applicable to a bill of exchange payable on demand apply to a cheque.

Presentment of cheque for payment.

73. (1) Subject to the provisions of this Act — (a) if a cheque is not presented for payment within a reasonable time of its issue and the drawer or person on whose account it is drawn had the right at the time of such presentment as between him and the banker to have the cheque paid and suffers actual damage through the delay, he is discharged to the extent of such damage; that is to say, to the extent to which such drawer or person is a creditor of such banker to a larger amount than he would have been had such cheque been paid; (b) the holder of a cheque to which such drawer or person is discharged shall be a creditor in lieu of such drawer or person of such banker to the extent of such discharge and entitled to recover the amount from him. (2) In determining what is a reasonable time for the purpose of sub-section (1)(a) regard shall be had to the nature of the instrument, the usage of trade and of bankers, and the facts of the particular case.

Revocation of banker’s authority.

74. The duty and authority of a banker to pay a cheque on him by his customer are determined by — (a) countermand of payment; (b) notice of the customer’s death; (c) notice of the customer having become insolvent.

General and special crossings defined.

75. (1) If a cheque bears across its face an addition of — (a) the words “and Company” or any abbreviation thereof between two parallel transverse lines, either with or without the words “not negotiable”; or (b) two parallel transverse lines simply, either with or without the words “not negotiable”; that addition constitutes a crossing and the cheque is crossed generally. (2) If a cheque bears across its face an addition of the name of a banker either with or without the words “not negotiable” that addition constitutes a crossing and the cheque is crossed specially and to that banker.

Crossings by drawer or after issue.

76. (1) A cheque may be crossed generally or specially by the drawer.

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(2) If a cheque is uncrossed the holder may cross it generally or specially. (3) If a cheque is crossed generally the holder may cross it specially. (4) If a cheque is crossed specially or generally the holder may add the words “not negotiable”. (5) If the cheque is crossed specially the banker to whom it is crossed may again cross it specially to another banker for collection. (6) If an uncrossed cheque or a cheque crossed generally is sent to a banker for collection he may cross it specially to himself.

Crossing a material part of cheque.

77. A crossing authorised by this Act is a material part of the cheque, and it shall not be lawful for any person to obliterate or except as authorised by this Act to add to or alter the crossing.

Duties of bankers as to crossed cheques.

78. (1) If a cheque is crossed generally the banker on whom it is drawn shall not pay it otherwise than to a banker. (2) If a cheque is crossed specially the banker on whom it is drawn shall not pay it otherwise than to the banker to whom it is crossed or to his agent for collection being a banker. (3) If a cheque is crossed specially to more than one banker except when crossed to an agent for collection being a banker the banker on whom it is drawn shall refuse payment thereof. (4) If the banker on whom the cheque is drawn which is so crossed nevertheless pays the same or pays a cheque crossed generally otherwise than to a banker, or if crossed specially otherwise than to the banker to whom it is crossed or his agent for collection being a banker, he is liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid: Provided that where a cheque is presented for payment which does not at the time of presentment appear to be crossed or to have had a crossing which has been obliterated or to have been added to or altered otherwise than as authorised by this Act, the banker paying the cheque in good faith and without negligence shall not be responsible or incur any liability, nor shall the payment be questioned by reason of the cheque having been crossed or of the crossing having been obliterated or having been added to or altered otherwise than as authorised by this Act, and of payment having been made otherwise than to a banker or to the banker to whom the cheque is or was crossed or to his agent for collection being a banker, as the case may be.

Protection to banker and drawer where cheque is crossed.

79. If the banker on whom a crossed cheque is drawn in good faith and without negligence pays it if crossed generally to a banker and if crossed specially to the banker to whom it is crossed or his agent for collection being a banker, the banker paying the cheque, and if the cheque has come into the hands of the payee the drawer, shall respectively be entitled to the same rights and be placed in the same position as if payment of the cheque had been made to the true owner thereof.

Effect of crossing on holder.

80. If a person takes a crossed cheque which bears on it the words “not negotiable”, he shall not have and shall not be capable of giving a better title to the cheque than that which the person from whom he took it had.

True owner of stolen or lost crossed cheque marked “not negotiable” entitled to compensation from certain subsequent possessors.

81. (1) If a cheque has been stolen or lost while it was crossed as hereinbefore provided, and while it bore on it the words “not negotiable”, and it has been paid by the banker upon whom it is drawn under circumstances which do not render such banker liable in terms of this Act to the true owner of the cheque for any loss he may sustain owing to the cheque having been paid, the true owner shall, if he has suffered any loss as a result of the theft or loss of the cheque, be entitled to recover from any person who has been the possessor thereof after the theft or loss, and either gave a consideration therefor or took it as a donee, an amount equal to the true owner’s said loss, but not exceeding the amount of the cheque. 644

(2) If a person has after the theft or loss paid any such cheque into his account with a banker after having paid or for the purpose of paying the amount of the cheque or part thereof to the person from whom he received the cheque, or, on his direction, to any other person, he shall, for the purposes of sub-section (1), be deemed to have been a possessor of the cheque and to have given a consideration therefor: Provided that this sub-section shall not apply to a collecting banker employing another banker as his agent for the collection of any such cheque. (3) If a person has received any such cheque into his possession or custody after the theft or loss, and fails to furnish the true owner or any person who has in terms of subsection (7) the rights of a true owner, at his request, with any information at his disposal in connection with the cheque, he shall for the purposes of sub-section (1) be deemed to have been a possessor of the cheque and either to have given a consideration therefor or to have taken it as a donee. (4) Every possessor of any such cheque shall, for the purposes of this section, and until the contrary is proved, be deemed either to have given a consideration therefor or to have taken it as a donee. (5) For the purposes of sub-section (1) a banker who receives payment of any such cheque for a customer shall, subject to sub-section (3), not be deemed to have given a consideration therefor, merely because he has in his own books credited his customer’s account with the amount of the cheque before receiving payment thereof, or because any such payment is applied towards the reduction or settlement of any debt owed by the customer to the banker. (6) If in any action under this section the defendant proves that when he became the possessor of the cheque, it did not appear to be crossed or to have had a crossing which has been obliterated and to bear on it the words “not negotiable”, or to have borne on it any words which might have been the words “not negotiable” and have been obliterated, he shall, subject to sub-section (3), not be held liable under this section. (7) A person who has discharged his liability under sub-section (1) or under this sub-section, and who took the cheque in good faith and without notice of any defect in the title of the transferor, shall as against any prior possessor of the cheque, who became a possessor thereof after the theft or loss and either gave a consideration therefor or took it as a donee, have the rights conferred upon a true owner by sub-section (1). (8) For the purpose of this section the giving of a consideration includes the receiving of any such cheque in reduction or settlement of any debt or liability.

Sections 75 to 81 to extend to documents other than cheques crossed for like object.

82. Sections 75 to 81 inclusive shall extend to any document issued by a customer of any banker and intended to enable any person to obtain payment on demand from such banker (or from any banker if the document was issued on behalf of the Government) of the sum mentioned in such document, and shall so extend in like manner as if the said document were a cheque; and the said sections shall mutatis mutandis also extend to any document which — (a) was issued on behalf of the Government; (b) is drawn upon or addressed to a servant of the Government (hereinafter in this section called the drawee); and (c) is intended to enable any person to obtain payment on demand of the sum mentioned in such document from the drawee or from or through a banker, as if the said document were a cheque and as if the drawee were a banker and the Government his customer: Provided that nothing herein contained shall be deemed to render any such document a negotiable instrument.

PART XIV UNINDORSED OR IRREGULARLY INDORSED INSTRUMENTS Effect of payment to or crediting of accounts by bankers of amounts of unindorsed or irregularly indorsed cheques and certain other documents. 83. (1) If a banker in good faith and in the ordinary course of business credits the account of a customer of his with or pays to another banker the amount of — (a) any cheque drawn on him;

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(b) any other document issued by a customer of his and intended to enable any person to obtain payment on demand of the sum mentioned in such document from him (or from any banker, if the document was issued on behalf of Government); or (c) a draft payable on demand drawn by such first mentioned banker upon himself, or upon his agent who is a banker, whether payable at the head office of his bank or of such agent, he shall not incur any liability by reason only of the absence of, or irregularity in, indorsement thereof, and such cheque, document or draft shall be discharged by such crediting of the account in question or by such payment. (2) The provisions of sub-section (1) shall mutatis mutandis also apply to any document which — (a) was issued on behalf of the Government; (b) is drawn upon or addressed to a servant of the Government (hereinafter in this section called the drawee); and (c) is intended to enable any person to obtain payment on demand of the sum mentioned in such document from the drawee or from or through a banker; as if the said document were a cheque and as if the drawee were a banker and the Government his customer.

Rights of bankers if unindorsed or irregularly indorsed cheques or certain other documents are delivered to them for collection. 84. If a cheque, or draft or other document referred to in section 83, which is payable to order, is delivered by the holder thereof to a banker for collection, and such cheque, draft or document is not indorsed or was irregularly indorsed by such holder, such banker shall have such rights, if any, as he would have had if, upon such delivery, the holder had indorsed it in blank.

Evidential value of payment of unindorsed or irregularly indorsed cheques or certain other documents.

85. If an unindorsed or irregularly indorsed cheque or draft or other document referred to in section 83, has been paid by the banker (including a drawee referred to in sub-section (2) of the said section) on whom it is drawn, such payment shall be prima facie evidence of the receipt by the payee of the sum mentioned in such cheque, draft or document.

Negotiability of documents referred to in section 83, 84 and 85.

86. The provisions of sections 83, 84 and 85 shall not make negotiable any document which, apart from them, is not negotiable. (Added by P.51/1964.)

PART XV

PROMISSORY NOTES

Promissory note defined.

87. (1) A note is an unconditional promise in writing made by one person to another signed by the maker, engaging to pay on demand or at a fixed or determinable future time a sum certain in money to or to the order of a specified person or to bearer. (2) An instrument in the form of a note payable to maker’s order is not a note within the meaning of this section unless and until it is endorsed by the maker. (3) A note is not invalid by reason only that it contains also a pledge of collateral security with authority to sell or dispose thereof.

Delivery necessary.

88. A note is inchoate and incomplete until delivery thereof to the payee or bearer.

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Joint and several notes.

89. (1) A note may be made by two or more makers and they may be liable thereon jointly or jointly and severally according to its tenor. (2) Where a note runs “I promise to pay” and is signed by two or more persons it is deemed to be their joint and several note, and any note signed by two or more persons is deemed to be their joint and several note in the absence of a contrary intention appearing upon the face of it.

Note payable on demand.

90. (1) If a note payable on demand has been indorsed it must be presented for payment within a reasonable time of the indorsement, and if it is not so presented the indorser is discharged. (2) In determining what is a reasonable time regard shall be had to the nature of the instrument, the usage of trade and the facts of the particular case. (3) If a note payable on demand is negotiated it is not deemed to be overdue for the purpose of affecting the holder with defects of title of which he had no notice by reason that it appears that a reasonable time for presenting it for payment has elapsed since its issue.

Presentment of note for payment.

91. (1) If a note is in the body of it made payable at a particular place it must be presented for payment at that place in order to render the maker liable unless the particular place mentioned is the place of business of the payee and the note remains in his hands. (2) In no other case is presentment for payment necessary in order to render the maker liable. (3) Presentment for payment is necessary in order to render the indorser of a note liable. (4) If a note is in the body of it made payable at a particular place presentment at that place is necessary in order to render an indorser liable: Provided that its place of payment is indicated by way of memorandum only presentment at that place is sufficient to render the indorser liable: And provided further that presentment to the maker elsewhere, if sufficient in other respects, shall also suffice.

Liability of maker.

92. The maker of a note by making it — (a) engages that he will pay it according to its tenor; (b) is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse.

Application to notes of provisions relating to bills.

93. (1) Subject to the provisions in this Part and except as by this section provided the provisions of this Act relating to bills of exchange apply with the necessary modifications to notes. (2) In applying those provisions the maker of a note shall be deemed to correspond with, the acceptor of a bill and the first indorser of a note shall be deemed to correspond with the drawer of an accepted bill payable to drawer’s order. (3) The following provisions as to bills do not apply to notes, namely, the provisions relating to — (a) presentment for acceptance; (b) acceptance; (c) acceptance supra protest; (d) bills in a set.

PART XVI

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SUPPLEMENTARY

Good faith.

94. A thing is deemed to be done in good faith within the meaning of this Act where it is in fact done honestly whether it is done negligently or not.

Signature.

95. If by this Act any instrument or writing is required to be signed by any person it is not necessary that he should sign it with his own hand but it is sufficient if his signature is written thereon by some other person by or under his authority, and the authorised sealing with a corporate seal of a corporation or the authorised stamping with an official stamp of any bank or company shall be deemed to be sufficient and equivalent to signature or indorsement of any such instrument or writing.

Computation of time.

96. If the reasonable or other time limited for doing any act or thing is by this Act reasonable to be less than four days, non-business days are excluded in reckoning such time.

When noting equivalent to protest.

97. If a bill or note is required to be protested within a specified time or before some further proceeding is taken it is sufficient for the purpose of this Act to the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding, and the formal protest may be extended at any time thereafter as of the date of the noting.

Protest when notary not accessible.

98. (1) If a dishonoured bill or note is authorised or required to be protested and the services or a notary cannot be obtained at the place where the bill is dishonoured, any landowner or householder of the place may in the presence of two witnesses give a certificate signed by them attesting the dishonour of the bill, and the certificate shall in all respects operate as if it were a formal protest of the bill. (2) The form given in the schedule to this Act may be used with necessary modifications and if used shall be sufficient.

Dividend warrants and coupon for interest may be crossed.

99. The provisions of this Act as to crossed cheques shall apply to a warrant for payment of a dividend to a coupon for payment of interest and to postal or money orders.

Laws not to be affected by this Act.

100. Nothing in this Act shall affect the provisions of or in any way restrict the — (a) Stamp Duties Act or any law for the time being in force relating to the revenue; (b) Banks Act 2/1893 and any amendment thereof; (c) laws relating to companies; (d) procedure and practice in regard to the granting of provisional sentence in judicial proceedings.

SCHEDULE

FORM OF PROTEST WHICH MAY BE USED WHEN THE SERVICES OF A NOTARY CANNOT BE OBTAINED

Know all men that I, A.B., landowner or householder of...... , in the district of...... , Swaziland at the request of C.D. there being no notary

648 public available did on the...... day of ...... , 20..... , at ...... demand payment (or acceptance) of the bill of exchange hereunder written from E.F., to which demand he made answer (state answer if any) wherefore I now in the presence of G.H. and J.K. do protest the said bill of exchange. A.B. Witnesses — G.H. J.K. N.B. — The bill itself should be annexed or a copy of the bill and all that there is thereon should be underwritten.

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THE PAWNBROKING ACT Commentary This is an Act regulating the business of pawnbrokers in Swaziland. According to the Act any person who wishes to carry on business as a pawnbroker needs to apply for a License at the office of the regional administrator in the region in which he wishes to carry on the business. This License is not transferable and may be withdrawn by the Regional Director in circumstances where this act has been contravened.

It is the duty of a pawnbroker to ensure that he does not accept, pay for or buy goods or property if he suspects that they do not belong to the person offering them for pawn or sale.

One of the requirements necessary before issue of this License is that the applicant has to give security amounting to E1000 (Emalangeni One Thousand) together with two sureties in possession of un-mortgaged fixed property who shall both be liable in the amount of E500 (Emalangeni Five Hundred) each.

Before a pawnbroker can sell any items that have not been released within the time agreed upon he has to advertise in the gazette and a local newspaper at least fourteen days before such sale.

The Pawnbroking Act, 1894

Date of commencement: 25th July, 1894.

An Act to make rules and regulations with regard to pawnbrokers.

Short title. 1. This Act may be cited as the Pawnbroking Act, 1894.

Licenses. 2. A person desirous of carrying on business as a pawnbroker within Swaziland shall take out a License at the office of the Regional Administrator, or other official appointed for the purpose, within whose district he resides, and shall pay therefor the fees specified in the Schedule.

Refusal of License. 3. The Regional Administrator, or other qualified official, shall have the right to refuse such License, if he deems such refusal advisable in the interest of the regiondistrict.

Duty of pawnbroker. 4. No person shall have the right to accept or to advance money or value on, or to pay for or to buy, any goods or property should he suspect that such articles are not the bona fide property of the person who offers them for pawn or sale, but he shall in suspicious cases immediately inform the proper authorities thereof.

Public sale of articles. 5. All articles and property not released within the time agreed upon shall be sold on the public market at a date at least fourteen days after publication has been made in the Gazette and a newspaper circulating in the district in which the pawnbroker resides.

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License not transferable.

6. The pawnbroker’s License shall not be transferable, and the person in whose name the License is issued shall in every case be liable for any contravention of this Act.

Security.

7. Any person desirous of carrying on the business of a pawnbroker shall before the License is issued give security to the amount of one thousand emalangeni, together with two competent sureties in possession of unmortgaged fixed property, who shall be liable in solidum, in the amount of five hundred emalangeni each.

Form of deed of security.

8. The form of deed of security shall be more or less as follows:

DEED OF SECURITY FOR PAWNBROKERS

Appeared before me, ...... this ...... day of ...... 19 ...... , residing at ...... who declared that he was indebted to the Government of Swaziland in the sum of one thousand emalangeni: and ...... of ...... and ...... of...... , who declared that they each are indebted jointly and severally in solidum to the Swaziland Government in the sum of five hundred emalangeni: accordingly renouncing the legal exceptions of ...... with the force of which they declared themselves to be fully acquainted, to be recovered from the goods and properties of either or both of them in case the said ………………………… did not fulfil the duties and obligations enjoined on him by law. Thus done and signed at the office of …………………, at ………………………….., This ………………..day of ……………………………………, signed before me on day, date and place aforementioned. (Signature) As Witnesses: Regional Administrator, (or other authorised official).

Withdrawal of License.

9. The License may be withdrawn by the Regional Administrator or qualified official respectively, in case of any contravention of this Act.

Offence and penalty.

10. A person who contravenes this Act shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred emalangeni or in default of payment thereof to imprisonment for a period not exceeding six months.

Prohibition on acting as pawnbroker.

11. No person will be allowed to act as pawnbroker, or to carry on that profession, without having obtained the License mentioned in section 2.

SCHEDULE E c. For twelve months ...... 80 00 For nine months...... 60 00 For six months ...... 40 00 For three months...... 25 00 651