The Mining (Corporate Social Responsibility) Regulations, 2023
Droit des sociétés
The primary objective of the Beneficial Ownership Regulations is to enhance transparency, integrity, and accountability within companies by uncovering individuals who hold substantial control or own shares indirectly.
In this legal update, we examine the newly enacted Companies (Beneficial Ownership) Regulations GN. 478 of 2023 (the New Regulations) and outline significant changes introduced by the New Regulations following the revocation of the Companies (Beneficial Ownership) Regulations GN. 391 of 2021 (the Old Regulations). The changes provide clarity on several key issues.
Under section 483 (2) of the Companies Act No. 12 of 2002 (as amended) (the Companies Act); the New Regulations were introduced to regulate beneficial ownership and the reporting procedures pursuant to them. The New Regulations also establish requirements for the management of the register of beneficial owners and specify the consequences of non-compliance.
|2021 Regulations||2023 Regulations|
Under the Old Regulations “Beneficial Owner” was defined as a natural person.
(a) who directly or indirectly ultimately owns or exercises substantial control over an entity or an arrangement;
(b) who has a substantial economic interest in or receives substantial economic benefit from an entity or an arrangement directly or indirectly whether acting alone or together with other persons;
(c) on whose behalf an arrangement is conducted; and
(d) who exercises significant control or influence over a person or arrangement through a formal or informal agreement.
The definition of the Beneficial Owner under the New Regulations has been expounded by building in the definition of Beneficial Owner from the Companies Act, which is much broader, and introducing new definitions as follows:
“Beneficial Owner” has the meaning ascribed to it under the Act.
“Direct Beneficial Owner” means a natural person who holds or acquires a beneficial interest in the company and registered in his name.
“Indirect Beneficial Owner” means a natural person who holds or acquires a beneficial interest in the company not registered in his name.
Further, the following terms have been added:
“Direct ownership” means direct beneficial ownership.
“Registered owner” means any person whose names appearing the register of members.
|Under the Old Regulations “Beneficial interest” was not defined.||“Beneficial interest” means substantial economic interest or benefit or substantial or significant control in a company.|
Beneficial owners in a company incorporated or registered under the Companies Act would submit to the Registrar of Companies (the Registrar) its particulars in Form No. 14b prescribed in the Companies (Forms) Rules.
The New Regulations have introduced a different method of reporting beneficial ownership. Depending on the beneficial ownership category, companies are now required to submit details of Beneficial Owners to the Registrar as highlighted below.
Direct Beneficial Owners must notify the Registrar within thirty (30) days from the date their name is entered in the register of members and Beneficial Owners.
This notification must be made through the beneficial ownership online portal.
On the other hand, Indirect Beneficial Owners are required to provide the Registrar with particulars of their beneficial ownership by completing Form No. 14b within thirty (30) days from the date their name is entered in the register of members and Beneficial Owners.
Under the Old Regulations when a person ceased to be a Beneficial Owner, the company would be required to file a notice to that effect to the Registrar under form No. 14c prescribed in the Companies (Forms) Rules within thirty (30) days from the date of cessation.
Upon payment of a fee prescribed in the Companies (Fees Payable to Registrar) Regulations (TZS 15,000) approximately (USD 7) a person will cease to be a Beneficial Owner.
Presently, according to the New Regulations, the notification of cessation for Beneficial Owners is as follows.
The Indirect Beneficial Owner would be required to file a notice of cessation to the Registrar by completing form No. 14c as specified in the Companies (Forms) Rules within thirty (30) days from the date of cessation and must pay a fee of TZS 15,000 (approximately USD 7).
Failure to file the cessation forms for Indirect Beneficial Owners may result in a late filing fee.
It should be noted that the New Regulations do not address the filing of notification for the cessation of Direct Beneficial Owners. Furthermore, the New Regulations now require companies to submit details of any changes in their Indirect Beneficial Owner using Form No. 14f as specified in the Companies (Forms) Rules within thirty (30) days from the date of the change.
In circumstances where there is a transfer or transmission of shares, an increase or reduction of share capital, a restructuring of a company's share capital, or changes in voting rights leading to any change in beneficial interest, the company must, in addition to following the procedures outlined in the Companies Act, provide a notice on Form No. 14f as specified in the Companies (Forms) Rules to the Registrar indicating the change in beneficial ownership of the company.
The Registrar is prohibited from registering a notice of share acquisition or any other document related to changes in issued share capital or voting rights unless the requirements for filing changes in beneficial ownership have been fulfilled.
The notices regarding changes in beneficial ownership as set out in the New Regulation must be signed by at least one (1) director of the company or the company secretary, and a certified true copy of the official identification document for each Beneficial Owner must be submitted to the Registrar.
Under the Old Regulations, companies were limited in their ability to use or reveal any information regarding their Beneficial Owner unless certain conditions were met.
These conditions included;
(a) when communicating with the Beneficial Owner concerned;
(b) adhering to legal obligations outlined in the Companies Act; and
(c) in compliance with court orders.
The New Regulations, while retaining the limitations provided in the Old Regulations, introduce additional exceptions as follows:
(a) when in compliance with instructions from the respective Beneficial Owner; and
(b) when in compliance with the requirements of any other written law.
These two exceptions were not previously included in the law.
|Under the Old Regulations, Regulation 7 provided that the information of Beneficial Owners of every company provided to the Registrar in accordance with the Old Regulations would be entered and held by the Registrar.||Under the New Regulations, Regulation 7 has added subsection (2) stating that the information held by the Registrar in the register shall be made available to competent authorities upon written request to the Registrar.|
|Under the Old Regulations, the extension of time for companies to file Beneficial Owner’s information was not provided.||The New Regulations have now provided room for companies to seek an extension of time from the Registrar to file the Beneficial Owner’s information. And if the Registrar is satisfied with the reasons for extension may extend time for filing but not exceeding thirty (30) days.|
In conclusion, although the differences between the Old Regulations and the New Regulations may not be substantial, the latter has undoubtedly filled in gaps left by its predecessor. The New Regulations have introduced improved control mechanisms on reporting requirements on Beneficial Owners.
If you would like more information on the regulations, please contact one of the authors below.