CHAPTER 44:01
BANKING

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Application of the Financial Services Act

PART II
LICENSING OF BANKS

   4.   Licensing of banks

   5.   Conditions for licensing of banks

   6.   Limitation on shareholding

   7.   Licensing criteria

   8.   Suspension or revocation of licence

   9.   Register

PART III
PRUDENTIAL SUPERVISION

Division I
Obligations of Banks

   10.   Capital funds and minimum capital ratios

   11.   Directives related to accounting policies of banks and financial institutions

   12.   Restriction of cash dividends

   13.   Submission of periodic returns to the Registrar

   14.   Supervision of banks and financial institutions

   15.   Exchange of information

   16.   Appointment of external auditor

   17.   Duties of external auditors to a bank

   18.   Requirements on bad debt provisions

   19.   Records, books of account and information to be kept

Division II
Structural Matters and Limitations

   20.   Prohibited transactions

   21.   Equity investments privately held by liquidated or divested investor

   22.   Restricted transactions

   23.   Matters that may be covered by the Registrar's directives

   24.   Restrictions on loans to shareholders, directors, officers, employees and to their relations, etc.

   25.   Actions requiring prior approval

Division III
Enforcement and Other Remedial Measures

   26.   Enforcement actions by the Registrar

   27.   Provisions relating to statutory management or closure of banks

   28.   Registrar to determine action on bank placed under statutory management

PART IV
WINDING-UP

   29.   Liquidation or winding-up of a bank

   30.   Powers of a liquidator

   31.   Liquidator to report on custodial assets and liabilities

   32.   Preference of certain claims

   33.   Financial records, audit and release of liquidator

   34.   Companies Act applicable in case of winding-up

   35.   Entries in bank books and evidence of depositor claim

   36.   Unclaimed funds after winding-up

   37.   Expenses relating to liquidation

PART V
MONETARY SUPERVISION

   38.   Monetary directives

   39.   Administrative penalty

PART VI
ABANDONED PROPERTY

   40.   Abandoned property to be delivered

PART VII
FIDUCIARY OPERATIONS

   41.   Fiduciary operations to be specially permitted

PART VIII
MISCELLANEOUS PROVISIONS

   42.   Identification of depositor by thumb impression

   43.   Use of the word “bank”

   44.   Advertisement of financial services

   45.   Board of directors for a bank

   46.   Conflict of interest

   47.   Additional responsibilities of the board

   48.   Additional duties of directors

   49.   Liability of executive officers, etc.

   50.   Prohibited remuneration of directors, officers and others

   51.   Customer due diligence

   52.   Violations of this Act to be published

   53.   Inconsistency with the Companies Act

   54.   General offence and penalty

   55.   Regulations

   56.   Continuity of banking licence

   57.   Transition period

19 of 1989
12 of 1991
10 of 2010
G.N. 105/1989
28/1997

An Act to provide for the regulation of the business of banking in Malawi, and to provide for matters incidental thereto and connected therewith

[11TH JANUARY 2010]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Banking Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

   “bank” means a person who conducts banking business in Malawi, including by accepting funds withdrawable by cheque or transferable by other means;

   “banking business” means the business of receiving deposits or deposit substitutes from the public that are—

   (a)   payable, with or without interest, on demand, or after the
expiration of a stated period; and

   (b)   transferable by cheque or by other means.

   “banking licence” means a licence granted by the Reserve Bank of Malawi and issued under the Financial Services Act to carry on banking business;

   “capital” includes paid-up capital and unimpaired reserves;

   “close relation” means spouse, brother, sister, parent, child, child of the spouse and the spouse of any of these and also includes a business partner and the close relations of the business partner;

   “controlling party” has the meaning ascribed to that term in the Financial Services Act;

   “company” means any company incorporated or registered as such under the Companies Act;

   “core capital” means paid-up share capital and disclosed reserves, with the latter being defined as the total of statutory reserves, retained profits from prior years, share premium, and sixty per cent (60%) of after tax profits in the current year to date (or in the case of loss, one hundred per cent (100%) of that loss), less unconsolidated investments in financial companies;

   “credit facility” includes financing by means of loans, leases, advances, establishing a line of credit, factoring, hire purchase, accepting of trade and other bills, discounting of such bills and notes, the opening or confirming of documentary credit, the issue of other letters of standby, guarantee or surety, the undertaking to pay on account of another person, and such other similar undertakings as may be prescribed by the Registrar in the Registrar’s directives from time to time;

   “deposit” means money entrusted to a bank and accepted by it for credit to a depositor’s account, which is payable, with or without interest, on demand or after the expiration of a stated period of time;

   “deposit substitutes” means funds received from the public through the issue, endorsement or acceptance of debt instruments of any kind other than deposits, or through the issue of participations, certificate of assignment, repurchase agreements or similar instruments;

   “executive officer” means an officer at the most senior levels of the management of a bank, whether or not the officer is a director, who effectively manages the affairs of the bank;

   “group of related debtors” means a group of debtor companies or enterprises operating under common control of an individual or of a group of related individuals, or of a corporate body acting as a controlling party as defined in the Financial Services Act, 2009;

   “insider” includes any of the following—

   (a)   principal shareholders;

   (b)   members of the board of directors or audit committee;

   (c)   executive officer; and

   (d)   senior management officials;

   “liabilities to the public”, in relation to a bank means all claims against such bank payable on demand or at a determinate future date, whether or not the precise date of payment is fixed;

   “non-performing loan” means a credit facility that is not paying principal or interest according to the terms of the borrower’s financing agreement;

   “Registrar’s directive” means a directive issued under the Financial Services Act;

   “related party” includes any of the following—

   (a)   a person who is related to an insider of a licensed institution by marriage or consanguinity to the second degree;

   (b)   a legal person in which an insider has a business interest, including as a partner, director, manager or guarantor;

   (c)   an individual person for whom an insider is a guarantor;

   (d)   a subsidiary of the licensed institution or of an insider;

   (e)   a company or undertaking in which at least a ten per cent (10%) interest is held by the licensed institution or by an insider;

   (f)   a parent company of the licensed institution or of an insider;

   (g)   a company that is under common control with the licensed institution or of an insider;

   (h)   a company that holds at least a ten per cent (10%) interest of another company in which the licensed institution or an insider holds at least a ten per cent (10%) interest;

   (i)   company that has common management or common directors with the licensed institution, an insider, or another related party of the licensed institution; and

   (j)   a political party that is controlled by an insider or related party or whose funds or services shall benefit an insider or related party;

   “reserves”, in relation to a bank, means all funds which have been built up out of earnings, premiums on shares, profits from the realization of assets, and increase of the value of assets upon revaluation of such assets, and which have been set aside as a general or special reserve and are available for meeting the liabilities of the bank;

   “significantly undercapitalized bank” means a bank which has the following characteristics—

   (a)   has capital ratios that are less than fifty per cent (50%) of the requirement prescribed in the Registrar’s directive on capital;

   (b)   holds core capital of less than fifty per cent (50%) of the requirement prescribed in the Registrar’s directive on capital; or

   (c)   holds total capital of less than fifty per cent (50%) of the requirement prescribed in the Registrar’s directive on capital.

   “unsecured”, in relation to credit facilities, means credit facilities made without collateral, guarantee or other personal security, or if made against a collateral, guarantee or other personal security, such part of the credit facility which at any time exceeds the market value of the collateral or the amount recoverable from the guarantor or surety as the case my be

   (2) For the purposes of this Act, a person shall be deemed to be accepting deposits of money if such person accepts from the general public deposits of money as a feature of his business, or if such person solicits such deposits, irrespective of the terms and conditions under which such deposits are accepted or solicited and whether or not certificates or other instruments are issued in respect of any such deposit:

   Provided that the acceptance of insurance premiums by an insurer, shall not be deemed to constitute acceptance of deposits of money for the purposes of this Act.

   (3)   Words and expressions used in this Act have the meanings ascribed to them in the Financial Services Act.

3.   Application of the Financial Services Act

   This Act shall apply in addition to the Financial Services Act.

PART II
LICENSING OF BANKS

4.   Licensing of banks

   (1) A person shall not—

   (a)   conduct banking business in Malawi; or

   (b)   indicate to the public that he is conducting or is about to conduct banking business,

unless licensed as a bank under the Financial Services Act.

   (2) The Registrar shall not license a person as a bank unless the person is a body corporate.

   (3) The Registrar may, by Registrar’s directive, determine that other entities accepting funds from the public, including those that borrow from the public or other banks, and that employ such funds in whole or in part, by granting loans, advances and other credit facilities and by investing or by any other means at the risk of the person conducting such business, is engaged in banking business and shall require that entity to be licensed.

   (4) A person who contravenes this section commits an offence and on conviction shall be liable to a fine of K10,000,000 and to four years imprisonment.

5.   Conditions for licensing of banks

   (1) In considering an application for a banking licence, the matters that the Registrar shall take into account include—

   (a)   the validity and accuracy of the documents and information submitted therewith;

   (b)   the financial condition, resources, integrity and previous banking or non-banking business ventures of direct and indirect shareholders associates and affiliates of the proposed bank;

   (c)   the integrity, working experience and qualifications of the proposed directors and executive officers of the proposed bank and their competence to conduct the proposed business;

   (d)   the capacity of the applicant—

      (i)   to maintain an adequate capital at all times;

      (ii)   to comply with the provisions of this Act and of any other Act relevant to its business;

   (e)   the adequacy of the capital, and earning prospects resulting from the intended operation;

   (f)   the nature and scope of the proposed operation;

   (g)   the needs and convenience of the community or sector to be served;

   (h)   the structure of its organization;

   (i)   the interests of depositors and creditors of the applicant;

   (j)   the interest of the national economy and the public interest;

   (k)   the structure and shareholding of the proposed group of companies of which the proposed bank forms part or intends to form part;

   (l)   the sources and nature of capital to be used to finance the proposed bank;

   (m)   whether the applicant is or will be able to apply and maintain effective and proper internal control systems and sound principles of corporate governance; and

   (n)   other matters that may be deemed essential by the Registrar.

   (2) The Registrar may interview the promoter, directors and proposed senior management personnel in the course of an appraisal and also inspect their books and records to satisfy himself about the representations made or information furnished by the applicant.

6.   Limitation of shareholding

   (1) A person or group of persons who do not satisfy the criteria for the fit and proper test relating to controlling shareholders, as determined by the Registrar in the Registrar’s directives shall not acquire more than ten per cent (10%) of the shares of a bank.

   (2) A bank shall not transfer any shares referred to in subsection (1) without obtaining written approval from the Registrar.

   (3) The Registrar of Companies shall not register any transfer of shares of a bank referred to in subsection (1) without receiving a notice of no objection from the Registrar.

   (4) A person who is a controlling party of a bank shall not be a controlling party of another bank

7.   Licensing criteria

   (1) The Registrar shall not grant a licence unless he is satisfied that—

   (a)   the banking business to be conducted under the licence shall be effectively managed by at least two persons as executive officers of the bank; and

   (b)   the bank has minimum start-up capital as stipulated in the Registrar’s directive on capital.

   (2) A bank shall not engage in any business other than the business designated in its licence

8.   Suspension or revocation of licence

   Where a banking licence is suspended or revoked, the power of the Registrar to give written direction to the bank under the Financial Services Act shall extend to—

   (a)   the disposal of its assets; and

   (b)   its entering into any transaction or a transaction of any kind specified in the directions.

9.   Register

   (1) The Registrar shall keep a register of banks, consisting of a separate part for each class of banking business.

   (2) The Registrar shall publish in the Gazette

   (a)   the entry of a bank, or the cancellation of any entry, in the register;

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