These regulations may be cited as the Companies (Beneficial Ownership) Regulations, 2024 and shall come into operation on the date of publication in the Gazette.
Made under section 185 of the Companies Act, 2011. Published in the Lesotho Government Gazette Extraordinary, Vol. 69 No. 51, Tuesday 2nd July 2024, at pages 1263–1275.
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These regulations may be cited as the Companies (Beneficial Ownership) Regulations, 2024 and shall come into operation on the date of publication in the Gazette.
In these regulations -
“Act” means the Companies Act 2011;
“Apostille Certificate” means a certificate issued by a competent authority of a country from which the document emanates;
“beneficial interest” means a right or entitlement of a person, through ownership, agreement, relationship or otherwise, alone or together with another person to -
(a) receive or participate in any distribution in respect of the company’s securities;
(b) exercise or cause to be exercised, in the ordinary course, any or all of the rights attached to the company’s securities, or
(c) dispose or direct the disposition of the company’s securities, or any part of a distribution in respect of the securities but does not include any interest held in a unit or collective investment scheme in terms of the Collective Investment Schemes Regulations, 2018.2
“beneficial owner” means a person -
(a) who owns or controls a company;
(b) on whose behalf a transaction is being conducted;
(c) who exercises ultimate effective control over a company; or
(d) who has beneficial interest in a company.
“competent authority” means any public authority or a sector supervisory authority with statutory powers and designated responsibilities for combating money laundering and terrorist financing but excludes self-regulatory bodies;
“director” includes an individual appointed to a company’s board of directors to represent another person or entity, otherwise known as a “nominee director”;
“legal entity” refers to any entity or arrangement registered under any law in Lesotho and capable of establishing a customer relationship with a financial institution or otherwise own property and includes partnerships, associations, societies, foundations or trusts;
“person” means a natural person;
“securities” include shares, debentures, stocks but does not include Government bonds;
“shareholder” includes an individual who holds shares of a company on behalf of another person, otherwise known as a “nominee shareholder”; and
“ultimate effective control” refers to situations in which ownership or control is exercised through a chain of ownership or by means of control other than direct control.
For the purposes of these Regulations, a person controls a company, if -
(a) the person has, directly or indirectly -
(i) more than 10 percent of the shares or voting rights;
(ii) the right to appoint or remove a majority of directors or officers in a company and without whose approval director or officer of the company cannot be appointed or removed;
(iii) the right to exercise or exercises influence, power or authority over such a company; or
(iv) Ultimate effective control over the company.
(1) A person who knows or ought to have known that he -
(a) is a beneficial owner;
(b) has beneficial interest;
(c) is a shareholder of a company; and
(d) is a member or designated officer of a company shall notify the company that the person is a beneficial owner, shareholder, member or has beneficial interest in relation to the company.
(2) The notice referred to in subregulation (1) shall -
(a) state the date on which the person became a shareholder, member, beneficial owner or acquired beneficial interest in the company; (b) be accompanied by information referred to in regulation 7; (printed exactly so, with the page-break running the “(b)” item into (a) — a fresh (b) follows below, as printed)
(b) contain such other information as the company may require; and
(c) be submitted to the company within 7 days from the date on which that person first knew or reasonably ought to have known about their shareholding, membership, beneficial ownership or interest.
(3) A company may request a person referred to under subregulation (1) to provide requested information and that person shall provide the information requested within 7 days of the receipt of the request.
(1) A company shall obtain beneficial ownership information and keep an up to date register of its beneficial owners at its registered office in Lesotho.
(2) Subject to subregulation (3), the particulars of a beneficial owner, shall be entered in the register within 7 days after the company received the notice referred to in regulation 4.
(3) The company shall not enter any particulars of the beneficial owner in the register until the company has confirmed the particulars in accordance with subregulation (5).
(4) A company register of beneficial owners shall include particulars of any legal entity that holds shares in the company, and particulars of beneficial owners of such legal entity and holders of beneficial interest in such legal entity.
(5) The particulars of a beneficial owner are considered to have been confirmed, if -
(a) they were included in a list of beneficial owners delivered to the Registrar of companies by subscribers;
(b) the proof of identity of the beneficial owner has been provided to the company; or
(c) the particulars of the beneficial owner, of foreign origin have been verified by relevant authorities in the foreign jurisdiction.
(6) The company shall keep certified copies of identity documents of all its beneficial owners and the documents of foreign origin shall be accompanied by apostille certificates or an equivalent authentication certificate.
(1) The register of beneficial ownership held by the company shall record the following information -
(a) full names and surname;
(b) a service address;
(c) country of origin and district in which the individual is usually resident;
(d) nationality, citizenship and country of birth;
(e) date of birth;
(f) residential address;
(g) the date on which the individual became a beneficial owner in relation to the company in question; and
(h) the nature and extend of control or ownership over the company.
(2) Where a government, government department or international organisation have beneficial interest or ultimate effective control in the company, the company shall record the following particulars in respect of such entities -
(a) name;
(b) principal office and jurisdiction;
(c) the legal form and the law by which it is governed;
(d) the date on which it acquired control or beneficial interest in relation to the company; and
(e) the nature and extend of control over the company.
(3) The beneficial ownership register of a company shall further contain the following particulars of its shareholders -
(a) company or legal entity name;
(b) company or legal entity registration number;
(c) registered office address;
(d) the legal form of the legal entity;
(e) the jurisdiction of incorporation or registration;
(f) the date on which it became a registrable legal entity in relation to the company in question; (g) the nature of control; (printed exactly so; a fresh (g) follows below, as printed)
(g) the number of shares held;
(h) particulars of beneficial owners of such a shareholder; and
(i) information stated in subregulation (1) in respect of all shareholders.
(4) The information in the company beneficial ownership register shall be kept and maintained any of the official languages.
(5) The requirements under this regulation shall apply to a nominee shareholder and a nominee director equally.
(6) The company and its Directors shall be jointly and severally responsible for compliance by the company with this regulation.
(1) The company shall lodge and file particulars of its beneficial owners with the Registrar 7 days after such particulars are recorded by the company under regulation 6.
(2) The Registrar may direct a company to provide additional information on particulars of its beneficial owners.
(1) The company shall, within 7 days of receiving information relating to changes affecting its beneficial owners, record such changes and indicate the date on which the changes occurred.
(2) The company shall file with the Registrar, in a prescribed form, changes referred to in subregulation (1) within 7 days after the company records the changes in its register.
(3) Notwithstanding subregulation (2), the company shall notify the Registrar within 7 days after -
(a) a person ceases to be a beneficial owner in relation to the company,
(b) a legal entity ceases to hold shares or control in relation to the company; or
(c) any other change occurs as a result of which the particulars stated in regulation 6 are rendered incorrect or incomplete.
(1) If the company knows or ought to have known that the particulars of a beneficial owner, or legal entity recorded in the register of a company is incorrect, the company shall give notice to beneficial owner to confirm his particulars or to provide correct particulars.
(2) A company shall give the notice mentioned in subregulation (1) within 7 days after becoming aware or believing on reasonable grounds that the information is incorrect.
(3) A copy of a notice referred to in subregulation (1) and the response of the beneficial owner shall at the same time be provided to the Registrar.
(1) The company shall obtain, keep and maintain the beneficial ownership register accurate and up to date at all times.
(2) A managing director of the company shall include or cause to be included the information relating to beneficial ownership in the company’s annual report filed with the Registrar at the end of each financial year.
(3) The Registrar may require the company to provide updated information on beneficial owners where the Registrar has a reasonable cause to believe that a change has occurred.
(1) A beneficial ownership register kept by the company shall be available for inspection by the Registrar, or competent authorities at its registered office in Lesotho.
(2) The Registrar or competent authority shall inspect the register during working hours.
(3) The company shall upon request, cooperate and provide, in a timely manner, the Registrar or competent authority with basic information of the company and beneficial ownership information.
(4) The Registrar or a competent authority may -
(a) require a company to produce its register and any other document relating to the beneficial ownership register or the keeping of such a register;
(b) inspect, examine, and make copies of the beneficial ownership register and any document relating to such a register; and
(c) make such inquiry as may be necessary to ascertain whether the provisions of these regulations are complied with.
(5) Where the beneficial ownership register or related documents are kept in electronic form, the company shall -
(a) provide the Registrar or a relevant competent authority with access to the beneficial ownership register to enable the Registrar or competent authority to inspect and examine the register and shall give the Registrar or competent authority such assistance as may reasonably be required to inspect and make copies of the register or documents contained in the register;
(b) ensure that the information is kept in legible form, and that the Registrar is able to record information contained in the electronic register; and
(c) within 2 working days of the request being made, provide documents relating to beneficial ownership in legible form and provide copies of such documents in such format as the Registrar or competent authority may require.
(6) The company shall, on the directive of the Registrar and on such terms and conditions as the Registrar may provide, avail the beneficial ownership register to the competent authorities and accountable institutions listed in Schedule I.
(7) A company whose board of directors or senior management are resident outside Lesotho shall provide and authorize a natural person who is resident in Lesotho to be accountable to the Registrar and competent authorities for the purposes of providing -
(a) all basic information and beneficial ownership information held by company; and
(b) any assistance that may be required or competent authorities.
(1) A company shall keep an entry relating to a person who used to be a beneficial owner in the beneficial ownership register for at least 10 years and may remove such entry from the register after the expiration of 10 years from the date on which the person ceased to be a beneficial owner, ceased to exist or in the case of the company, the date on which the company ceased to exist.
(2) The provisions of subregulation (1) shall apply to an entry relating to a deceased beneficial owner and a company that was dissolved, liquidated or otherwise ceased to exist.
(3) A company shall keep, in a beneficial ownership register, an entry relating to a person that used to have a beneficial interest, control or ultimate effective control over the company for a period of 10 years and may remove such entry from the ownership register after the expiration of 10 years from the date the person was deceased or ceased to hold a beneficial interest in the company or in the of a company, the date on which the company was dissolved, liquidated or otherwise ceased to exist. (“in the of a company” printed exactly so)
(1) The Registrar shall keep and maintain a beneficial ownership register for all companies registered in Lesotho and the Register shall be up to date.
(2) The beneficial ownership register relating to basic information held by the Registrar or a company shall, be open for public inspection.
(3) Notwithstanding subregulation (2), the beneficial ownership register held by the Registrar shall be available for inspection by competent authorities, and accountable institutions listed in Schedule I of Money Laundering and Proceeds of Crime Act, 20083 or any successive Act.
(4) Where a company was dissolved, deregistered, liquidated or otherwise ceased to exist, the liquidator, trustees or designated officer shall keep the beneficial ownership information for a period of 10 years after the company was deregistered, dissolved, liquidated or otherwise ceased to exist.
(5) The Registrar may increase the period stated in subregulation (3), if necessary.
(6) The Registrar may require the liquidator, trustee or designated officer to provide beneficial ownership information at any time during or after liquidation or dissolution of a company.
(7) The Registrar shall keep the beneficial ownership information in relation to a dissolved, deregistered or liquidated company, for a period of 10 years after such dissolution, deregistration or liquidation.
(8) The basic information referred to in this regulation refers to information relating to identity of a person or company, date of incorporation, address of registered office, jurisdiction of permanent residence and nationality, names of directors and their nationality, names of shareholders and their nationality.
(1) The Registrar shall, on a reciprocity basis, cooperate with international counterparts by -
(a) facilitating access to publicly available information held by company registry;
(b) exchanging information on beneficial owners upon request and on such terms and conditions as may be determined; and
(c) allowing competent authorities, to obtain beneficial ownership information on behalf of foreign counterparts.
(2) The Registrar shall, upon request, provide and allow competent authorities to obtain beneficial ownership information held by the Register and shall, upon request, facilitate access to information held by the company.
(3) Except as provided in these regulations or pursuant to a court order, or in terms of any other enactment, information relating to beneficial ownership provided under these regulations, shall be confidential and shall not be disclosed to the public or any entity unless authorized by the Registrar.
(1) A company that fails to comply with these regulations shall be liable to pay a fine provided for in the Act upon demand by the Registrar.
(2) Where an officer of the company, including a director of a company, fails to comply with any duty imposed on the company by these regulations, such an officer or director shall be liable to pay a fine provided for in the Act which shall be paid to the Registrar.
(3) A person who fails to comply with any duty imposed by these regulations shall be liable to pay a fine provided for in the Act which shall be paid to the Registrar.
(4) The Registrar may, where a company fails, upon demand, to pay a fine imposed under these regulations -
(a) in case of a company, remove the company from the register of companies; and
(b) in case of a director, declare the director as a delinquent and disqualified from acting as a director.
(1) A company, or company officer or director, who fails, upon demand by the Registrar to pay a fine imposed under these regulations, commits an offence and is liable on conviction to a fine or sentence provided for in the Act.
(2) A person who fails, upon demand by the Registrar to pay a fine imposed under these Regulations, commits an offence and is liable on conviction to a fine or sentence provided for in the Act.