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PUBLIC ENTERPRISE MONITORING COMMISSION ACT, 2013

(Act No.3 0/2013)

ARRANGEMENT OF SECTIONS

SectionsPART 1 - PRELIMINARY

1.2.3.4.

Short title and commencementInterpretationApplication of this ActObjective of a Public Enterprise

PART II - PUBLIC ENTERPRISE MONITORING COMMISSION

Establishment of the CommissionObjects of the CommissionMembers of the CommissionFunds of the CommissionFinancial yearAudit of accountsFunctions of the CommissionPowers and Duties of the CommissionChief Executive Officer of the CommissionAppointment of employees of the CommissionReportReturns and informationFurnishing of information to the PresidentProtection for action taken under this ActOffencesPower of the Commission to make rules

PART III - CHIEF EXECUTIVE OFFICER

21. Chief Executive Officer22. Composition of the Board

14 Supplement to Official Gazette [29th April 2013]

PART IV - BOARDS

23. Other Employees24. Criteria for Appointment25. Positions on Board26. Remuneration of Board Members27. Procedures of Board28. Committees of Board29. Chief Finance Officer30. Directions of Responsible Minister31. Audit32. Protection for actions in good faith33. Validity of decisions in certain circumstances

PART V - REPORTING OBLIGATIONS

34. Statement of corporate intent35. Contents of statement36. Annual report37. Annual report to be laid before the National Assembly38. Monthly report to the Commission39. Estimates and Projections40. Other requests41. Report by the Commission

PART VI - MISCELLANEOUS

42. Powers of Responsible Minister43. Confidentiality44. Settlement of certain disputes45. Liquidation of Public Enterprise46. Regulations47. This Act to prevail over certain laws48. Repeal and savingsSCHEDULES

[29th April 2013] Supplement to Official Gazette 15

,~"TBLIC ENTERPRISE MONITORING COMMISSIONACT, 2013

(Act No.3 of2013)

I assent

J. A. MichelPresident

17th April, 2013

AN ACT to establish a Public Enterprise MonitoringCommission in order to ensure that Public Enterprises areproperly controlled and managed for the purposes of betterperfermance, transparency and accountability, to improvel Adeney and competitiveness of the economy, to fosterand accelerate the macro-economic stability of the countryand to provide for matters connected therewith.

ENACTED by the President and the National Assembly.

PART 1 - PRELIMINARY

1. This Act may be cited as the Public Enterprise Short title and

Monitoring Commission Act, 2013 and shall come into commencement

operation on such date as the Minister of Finance may appointbyNotice published in the Gazette.


2. In this Act-_Interpretation

Application ofthis Act

"Board" means-

(a) where a Public Enterprise is a company, theBoard of Directors of such company;

(b) where a Public Enterprise is not a company,the persons occupying responsible positions,that are comparable with those of tl-~Directors of a company, in or in relation '"such Public Enterprise under its governinglaw and regulations;

"Commission" means the Public EnterpriseMonitoring Commission establishedunder section 5;

"Commissioner" means a member of theCommission appointed under section 7;

"Director" means a person appointed as Director,trustee or any person being a Member of the Boardof aPublic Enterprise;

"governing law" means the Act or Decree whichestablishes and provides for the objectives,purposes and governance of the Public Enterprise;

"Organisation" includes a company, a bodycorporate, a statutory corporation, a statutory bor" -

I

a trust, a partnership or ajoint venture;

"Public Enterprise" means an organisationspecified in column 1 of Schedule I and anysubsidiary of such organisation;

"Responsible Minister" means the Minister for thetime being responsible for the relevant PublicEnterprise specified in column 2 of Schedule 1;

3. Public Enterprises in respect of which there exist amanagement contract between the Government of Seychellesand a third party may be exempted from the application of-


(a) Part III - Chief Executive officers;

(b) Part IV -Board,

of theAct, subject to the approval of the Minister ofFinance.

4. The principal objective of a Public Enterprise is tohe a successful business organisation and to achieve thisI jective-

(a) a commercially oriented Public Enterprisemust strive to be as profitable and efficient ascomparable businesses that are not owned bythe public; and

(b) a non commercially oriented Public Enterprisemust strive to exhibit a sense of socialresponsibility and awareness of the interestsof the community in which it operates, whileensuring the long term financial sustainabilityofthe Public Enterprise.

PART II - PUBLIC ENTERPRISE MONITORINGCOMMISSION

5.(1) There is hereby established in accordance with theprovisions of this Act a Commission to be known as the PublicPnterprise Monitoring Commission (in this Act referred to as'. .;"Commission").

(2) The Commission shall, by the name assigned to itby subsection (1), be a body corporate, with perpetualsuccession and a common seal and may sue and be sued in itscorporate name.

6.(1) The principal object of the Commission is tomonitor and evaluate the overall performance of the PublicEnterprises, ensure efficient operation of such Enterprises,promote ethics of good governance in all business transactions,including financial matters such as investments and budget,give recommendations to improve performance and thusincrease the return on investments.

Objective ofa PublicEnterprise

Establishmentof theCommission

Object of theCommission


(2) The Responsible Minister shall be responsible forpolicy formulation and other technical aspects ofthe operationin respect of such Public Enterprise.

Commissioners 7.( 1) The Commission shall consist of not less than 5 andnot more than 7 Commissioners as the Minister may from timeto time determine.

(2) The Commissioners shall be appointed by theMinister from amongst persons appearing to be qualified'h~reason of having had experience of, and having showncapacity in matters relating to industry, trade, finance, scienceor administration not including Chief Executive Officer orMember of a Board of a Public Enterprise.

(3) The Minister shall appoirit a Chairperson fromamongst the Commissioners.

(4) A Commissioner shall hold office for such period,not exceeding 3 years, as the Minister may direct; but anyCommissioner shall be eligible for re-appointment.

(5) The Minister may appoint any person appearing tohave the qualifications necessary for appointment under theprovisions of subsection (2) as a Commissioner to acttemporarily in the place of any Commissioner in the case of theabsence or inability of such Commissioner to act.

(6) Any Commissioner may at any time resign hisoffice by instrument in writing addressed to the Chairpers<~:who shall forthwith cause it to be forwarded to the Minister.

(7) The Minister may at any time revoke the appointmentof any Commissioner if he thinks it expedient to do so.

Funds of the 8.(1) The Commission shall have its own Fund.Commission

(2) There shall be paid into the Fund of theCommission -

(a) all such sums of money as may be voted uponfrom time to time by National Assembly forthe use of the Commission;

[29thApri12013] Supplement to Official Gazette 19

(b) all such sums of money as may be received bythe Commission in the exercise, performanceand dischargeof itspowers, dutiesand functions;

(c) all such sums of money as may be received bythe Commission by way of fees, grants,donations, gifts, bequests from any sourcewhatsoever, whether domestic or foreign; and

(d) all sumsofmoneyborrowedby theCommission.

(3) There shall be paid out of the Fund of theCommission, all such sums of money as may be required todefray any expenditure incurred by the Commission in theexercise, performance and discharge of its powers, duties andfunctions.

9. The Financial year of the Commission shall be thecalendar year.

10.(1) The Commission shall cause proper books ofaccounts to be kept of the income and expenditure, assets andliabilities and all other transactions of the Commission.

(2) The provisions of Article 158 of the Constitution.ating to audit of accounts of Public Corporations shall apply

to the audit of accounts ofthe Commission.

11. The Commission shall-

(a) be responsible for the implementation of thisAct and to monitor compliance with thegoveming law;

(b) analyze the approved annual budget of aPublic Enterprise and advise the appropriateBoard as to its adequacy or suitability III

compliance with the goveming law;

Financialyear

Audit ofaccounts

Functionsof theCommission


Powers andDuties of theCommission

(c) monitor the implementation of all the actionslaid out in the annual plan of PublicEnterprises;

(d) assess the implementation of projects carriedout by Public Enterprises to ensurecompliance with procedures and regulationsof capital expenditure;

(e) monitor and identify factors inhibiting therealization of set revenue targets of anyPublic Enterprise;

(f) ensure adherence by Public Enterprises topolicies and procedures formulated by theirResponsible Ministry or Board to ensuresound and efficient management, includingfinances of Public Enterprises;

(g) arrange investigation or inspection into theaffairs of a Public Enterprise where necessaryin the public interest;

(h) submit a report of all its activities on aquarterly basis to the Minister ofF inance;

(i) advise the Minister of Finance of arweaknesses or shortcomings in relation to u.,functioning of Boards of Public Enterprises;and

(j) identify issues relating to operational andfinancial risks of Public Enterprise that mayhave material impact on the Public Enterpriseand the economy as awhole.

12. The Commission shall have power to-

(a) formulate a framework for a sustainable andstable Public Enterprise performance strategy;


(b) request any Chief Executive Officer orChairperson of a Public Enterprise Board toappear before it to clarify any issues regardingthe finance, governance or any other aspectscovered under thisAct;

(c) request any information on the operation ofthe Public Enterprise on issues covered inSection 4 of thisAct;

(d) carry out on-site and off-site inspections asdeemed necessary for the purpose of carryingout its functions;

(e) assist the Auditor General with suchinformation as may be necessary to carry outhis audit functions;

(f) make recommendations to the Government onthe efficiency of ongoing Public Enterpriseswhich are profit making and are of nationalimportance;

(g) make rules in respect of the management ofthe affairs ofthe Commission;

(h) enter into such contracts as are deemednecessary for the discharge and performanceof its functions and duties;

(i) appoint, employ, remunerate and exercisedisciplinary control over such officers,servants or agents as are necessary for thedischarge and performance of its functionsand duties;

(j) enter into agreements for co-operation witheducational and other institutions, whether inSeychelles or abroad, for the exchange of


ChiefExecutiveOfficer of theCommission

Appointmentof employeesof theCommission

personnel, advisory services and the trainingof personnel;

(k) open and maintain current, savings or depositaccounts in any bank or banks;

(1) issue publications, circulars and press notices;

(m) act as the agent of the Government, inSeychelles or abroad, for the purposes of ai.,matter or transaction, if so authorised; and

(n) undertake all such activities as in the opinionof the Commission are necessary to facilitatethe discharge and performance of its functionsand duties.

13.(1) The President shall appoint a Chief ExecutiveOfficer to the Commission on such terms and conditions asmay be determined by the President.

(2) The Chief Executive Officer shall be the head of theCommission and be responsible for the-

(a) day-to-day administration; and

(b) direction and control of all other employees C'

the Commission.

14.(1) The Commission shall have power to appoint forthe Commission such other officers and employees as it maydeem necessary for the administration and management of theaffairs of the Commission and shall determine theremuneration payable to, and the conditions of service of suchofficers and employees.

(2) Where a public servant is temporarily appointed tothe Commission, the terms and conditions of service of such


employee shall be as determined by the Public SectorCommission.

15.(1) The Commission shall, not later than 6months after Reportthe end of each calendar year or within such longer period asthe Minister may approve, submit to the Minister a reportI ntaining an account of its transactions throughout thepreceding calendar year in such detail as the Minister maydirect.

(2) A copy of the report together with a copy of theannual accounts and auditor's report thereon shall be laidbefore the National Assembly.

16.(1) For the purpose Of enabling the Commission to Returns andexercise, perform and discharge any of its powers, duties and informationfunctions under the Act, the Commission or any personauthorised in that behalf by the Commission may, by notice inwriting, require any person to furnish to the Commission or tothe person authorised, within such period as shall be specifiedin the notice, all such returns or information pertaining to anybusiness affairs or transactions of any Public Enterprise as areknown to or in the possession of any person as shall beecified in such notice.

(2) It shall be the duty of any person who is required tofurnish any return or information by a notice under subsection(1) to comply with such requirement within the time specifiedin such notice, except where such person is precluded frommaking such return or divulging such information under theprovisions of any law.

(3) The Commission or any Member thereof or anyofficer or servant of the Commission, shall not disclose to anyperson or use any returns or information furnished undersubsection (1), except when required to do so by a court oflawor for the purposes of achieving the objects of the Commission.


Furnishing ofinformation tothe President

Protection foraction takenunder this Act

Offences

17. The President may, from time to time, direct theCommission to furnish to him in such form as he may requirereturns, accounts and other information with respect to thework of the Commission and the Commission shall carry outevery such direction.

18.(1) No suit shall be instituted against any Member ofthe Commission or against any of the officers or servants oustCommission for any act which in good faith is done orpurported to be done by such Members, officer or servantunder thisAct or on the direction ofthe Commission.

(2) Any expenses incurred by the Commission in anysuit or prosecution brought by or against it before any court,shall be paid out of the Fund of the Commission, and any costspaid to, or recovered by the Commission in any such suit orprosecution shall be credited to the Fund ofthe Commission.

(3) Any expenses incurred by any such person as isreferred to in subsection (1) in any suit or prosecution broughtagainst him before any court in respect of any act which is doneor purported to be done by him under this Act or on thedirection of the Commission shall, if the court holds that suchact was done in good faith be paid out of the Fund of theCommission, unless such expenses are recovered by hirrl1asuch suit or prosecution.

19.(1) Any person who-

(a) fails to furnish any returns or information incompliance with any requirement imposed onhim by subsection (1) of section 16;

(b) knowingly makes any false statement in anyreturn or information furnished by him incompliance with any requirements imposedon him by subsection (1) of section 16;or


(c) wilfully omits any matter in any return orinformation furnished by him in compliancewith any requirement imposed on him bysubsection (1) of section 16;

(d) contravenes the provisions of subsection (3) ofsection 16 ; or

(e) wilfully obstructs any Member of theCommission or an officer or servant of theCommission in the performance of his dutiesunder this Act,

shall be guilty of an offence.

(2) Where an offence under this Act is committed by abody of persons, then-

(a) if that body of persons is a body corporate,every Director and officer of that bodycorporate;

(b) if that body of persons is a firm, every partnerof that firm,

Jmmits an offence.

(3) Any employee of the Commission who accept anygift from any employees or Board of a Public Enterprise shallbe guilty of an offence.

20.( 1) The Commission may, with the approval of theMinister of Finance, make rules relating to the exercise,performance and discharge of the powers, duties and functionsconferred or imposed on or assigned to the Commission.

(2) Every rule made under subsection (1) shall comeinto force upon its publication in the Gazette.

Power ofCommissionto make rules


PART III - CHIEF EXECUTIVE OFFICER

Chief ExecutiveOfficer

21.(1) The President, in consultation with the ResponsibleMinister, shall appoint the Chief Executive Officer for eachPublic Enterprise.

(2) A Chief Executive Officer shall hold office uponsuch terms and conditions as approved by the President.

(3) The Chief Executive Officer of the PublicEnterprise shall, subject to the direction of the Board-

(a) exercise supervision over the day-to-dayaffairs of the Public Enterprise;

(b) sign documents on behalf of the PublicEnterprise.

(4) The Chief Executive Officer of a Public Enterprisemay, subject to the direction ofthe Board, delegate any of thepowers under subsection (3) to any officer or employee of thePublic Enterprise.

Other Employees 22. A Public Enterprise may employ such persons asare necessary to perform its functions.

PART IV - BOARDS

Composition ofthe Board

23. Except where the President and a ResponsibleMinister for the Public Enterprise concerned have otherwiseagreed-

(a) the Chief Executive Officer of a PublicEnterprise shall be an ex-officio Member ofthe Board;

(b) the Chief Executive Officer shall not be theChairperson ofthe Board;


(c) the Board of each Public Enterprise shallconsist of not less than five and not more thannine persons including the Chief ExecutiveOfficer ofthat Public Enterprise;

(d) a representative of the Ministry of Financeshall be aMember of every Board;

(e) a representative from the ResponsibleMinistry of the Public Enterprise shall be aMember of its Board;

(f) upon completion or termination of the term ofappointment of a Board Member, all benefitsand special privileges received as a Memberofthe Board shall cease.

24. Every Director of a Public Enterprise-

(a) shall be selected and appointed or reappointedin accordance with section 23 and criteria setout in Schedule 2;

(b) shall deliver their duties and be liable asDirector of the Public Enterprise as stipulatedper Schedule 5;

(c) in delivering their responsibility entrusted intothem, shall during their mandate, abide by thecode of ethics issued by theMinister.

25.(1) The President, in constituting a Board of a PublicEnterprise -

(a) shall appoint one of the non-executiveDirectors to be the Chairperson and anothernon-executive Director to be the Vice-Chairperson ofthe Board;

(b) shall, before appointing a person as Director,satisfy himself or herself that the person does

Criteria forAppointment

Positions onBoard


Remunerationof Board ofMembers

Procedures ofBoard

Committeesof Board

Chief FinanceOfficer

Directions ofResponsibleMinister

Audit

not have an interest which is likely toprejudicially affect the discharge of thatperson's functions as Director.

(2) The Chairperson, in consultation with the Board,shall appoint a person to be the secretary of the Board of aPublic Enterprise who shall be responsible for conveningmeetings of the Board, keeping records of meetings ar'decisions of the Board, communicating the decisions of tL.Board, submitting documents on behalf of the Board and,when required by the Board, executing orders ofthe Board.

26. Non-Executive Members of ft Board shall be paidsuch allowances and fees as may be proposed by the Board andapproved by the Public Sector Commission.

27. Schedule 3 shall have effect in respect of themeetings, quorum and proceedings of the Board of a PublicEnterprise.

28. A Board may set up committees to assist the Boardin regard to investment, audit, administration and othermatters, and determine the terms of reference of suchcommittees.

29. The Chief Finance Officer of each Pub.,cEnterprise shall be appointed by the Board.

30. The Responsible Minister may give the Board of aPublic Enterprise written directions on the policy to befollowed by the Board or those of a general nature relating tothe performance of its functions or its management that doesnot contradict with this Act or any other governing law and theBoard shall comply with the directions.

31. The Board of each Public Enterprise to whichArticle 158 (3) of the Constitution does not apply shall


nominate the auditors of the Public Enterprise who shall beappointed, or who may be dismissed, by the Board. Theauditor shall be appointed for a period not exceeding 5consecutive years.

32.( 1) A Board, a Director, the secretary or an officer of aI - iblic Enterprise shall not be criminally or civilly liable inrespect of an act done or omission made by the PublicEnterprise, the Board, the Director, the Secretary or Officer ingood faith in the execution or purported performance of afunction under this Act or other governing law.

(2) Subsection (1) shall not apply to exempt a PublicEnterprise from criminal or civil liability in respect of an actdone or omission made by its Board, a Director, the secretary,or officer of the Public Enterprise.

33. No act or decision of the Board of a PublicEnterprise is invalid by reason only-

(a) of a lack of a quorum at the meeting of theBoard;

(b) of a defect or irregularity in connection withthe appointment of a Director;

(c) of an irregularity in the convening of ameeting ofthe Board;

(d) that a person, who is disqualified from beingappointed as a Director under this Act or anyother written law had been appointedDirector; or

(e) that a Director who was disqualified fromvoting at or participating in a meeting of theBoard had voted at or participated in themeeting at which the decision or the decisionin relation to the act was made.

Protection foractions ingood faith

Validity ofdecisions incertaincircumstances


PART V - REPORTING OBLIGATIONS

Statementcorporateintent

Contents ofstatement

34. The Board of each Public Enterprise shall prepareand deliver to the Responsible Minister and the Commission,not later than one month after the coming into operation of thisAct, a statement of corporate intent in respect of the PublicEnterprise and thereafter not later than one month after thecommencement of each consecutive third financial year aupdated statement of corporate intent in respect of the financialyear in which it is delivered and in respect of each of theimmediately following two financial years.

35.( 1) A statement of corporate intent shall specify-

(a) the objectives and mission of the PublicEnterprise;

(b) the nature and scope of the activities to beundertaken by the Public Enterprise;

(c) where a Public Enterprise has a share capital,the ratio of the shareholders' funds to the valueofthe total assets ofthe Public Enterprise;

(d) the following standard performance targets

(i) percentage increase in turnover;

(ii) percentage increase in return on assets;

(iii) percentage increase in Return onCapital employed;

(iv) percentage increase in profit after tax;

and any other measures by which the performance of thePublic Enterprise may be judged in relation to its objectivesand the underlying assumptions on which the objectives arebased-


(e) an estimate of the amount intended to bedistributed as dividends for each year coveredby the statement of corporate intent;

(f) an estimate of the Net Present Value (NPV) ofthe investments in the Public Enterprise andthe manner in which, and the time at which,this value is to be reassessed using apercentage cost of capital applicable to theEnterprise.

(2) The Board of a Public Enterprise may, subject tochanges in its core operational strategy, after notifying andagreeing with the Responsible Minister and the Commission,amend the statement of corporate intent and serve a copy ofthestatement as amended to the Responsible Minister and theCommission.

36.(1) Each Public Enterprise shall, within three months Annual report

after the end of its financial year prepare an annual report on itsoperations which, together with a copy of its annual auditedaccounts as well as any report by the auditors on itsmanagement and accounting practices, shall be submitted to-

(a) the Minister of Finance;

(b) the Responsible Minister; and

(c) the Commission.

(2) An annual report of a Public Enterprise shallconform to the requirements of Schedule 4.

37. The Minister of Finance shall cause the annualreport of each Public Enterprise to be laid before the NationalAssembly within six months after the end of the financial yearof the Public Enterprise.

38. Each Public Enterprise shall, within fifteen daysafter the end of every month, submit to the Commission in such

Annual report tobe laid beforethe NationalAssembly

Monthly reportto MonitoringCommission


Estimatesandprojections

Otherrequests

Report bytheCommission

Powers ofResponsibleMinister

form as the Commission may determine, a statement of thefinancial and operational performance ofthe Public Enterpriseduring that month including details of debt performance,failure to do somay lead to sanctions as per schedule 5 (5)(b).

39. Each Public Enterprise shall submit to theCommission at such time during a financial year as theCommission may determine estimates of the profit and losscapital expenditure and cash flow and balance shecprojections in respect of the next financial year of the PublicEnterprise.

40. A Public Enterprise shall provide the Commissionwith any other information, not specified in this Act, butnecessary for the implementation of the Act requested mwriting by the Commission.

41. The Commission shall, on the basis of thestatement of corporate intent, the annual report and any otherinformation provided by a Public Enterprise, submit to theResponsible Minister a report on the past performance andfuture plans of the Public Enterprise.

PART VI - MISCELLANEOUS

42. The Responsible Minister may at any time-

(a) order an investigation into the affairs of aPublic Enterprise as the Responsible Ministerdeems necessary;

(b) after consulting the Minister of Finance andwith the approval of the President, by an Orderpublished in the Official Gazette, require theBoard of a Public Enterprise to-

(i) pay such amount of dividend out oftheprofits and revenue reserves of thePublic Enterprise as the Minister of


Finance may deem fit; after makingadequate provision for-

(a) acquisition, replacement anddepreciation of assets;

(b) repayment of loans andadvances; and

(c) interest on, such charges andexpenses incurred in connectionwith a loan;

(ii) make provision for capital reserves;

(iii) increase share capital of the PublicEnterprise;

(iv) issue shares in the Public Enterprise;

(v) authorise any person or body, includingthe Board of the Public Enterprise toexercise on behalf of the Governmentthe voting rights conferred by theshares of a Public Enterprise;

(c) on being satisfied that there is sufficientgroundfor doing so, extend the period oftime specifiedunder this Act for the performance of anobligationunder thisAct.

43. Any information submitted by the Board of a Confidentiality

Public Enterprise to the Responsible Minister, Minister ofFinance or the Commission shall not be published in a form ormanner that will enable the identity of a member of the publicdealing with the Public Enterprise to be ascertained.

44.( 1) Any dispute arising among Public Enterprises shall Settlement of

be settled by agreement among those Public Enterprises. certain disputes

(2) A dispute among Public Enterprises which cannotbe settled by agreement shall be referred to the Responsible


Liquidationof PublicEnterprise

Regulations

This Act toprevail overcertain laws

Minister or Responsible Ministers as the case may be, andwhose decision shall be final.

(3) The Responsible Minister or ResponsibleMinisters may delegate the exercise of their power undersubsection (2) to any person or body and the decision of thatperson or body shall be final.

45.(1) The Responsible Minister shall, after consultingthe Minister of Finance and with the approval of the President,by an Order published in the Official Gazette, dissolve a PublicEnterprise and appoint a liquidator for the purpose ofdischarging the liabilities of the Public Enterprise and for thepurpose of distributing the assets remaining thereafter to theRepublic or, in the case of a Public Enterprise with a sharecapital, to the shareholders ofthe Public Enterprise, subject torecommendations from the Commission.

(2) In discharging the liabilities of the PublicEnterprise, the relevant provisions of the Companies Act shallapply against the assets of the Public Enterprise.

46. The Minister of Finance may-

(a) make Regulations for the purpose of givingeffect to the principal objects and purposes ofthis Act; and

(b) by regulation amend any Schedule.

47.(1) Subject to subsection (2) and notwithstanding theprovisions of any law to the contrary, the provisions of this Actshall apply to every Public Enterprise specified in Schedule 1.

(2) Any provision of any written law in operationbefore the commencement of this Act relating to any PublicEnterprise shall, to the extent that it is inconsistent with anyprovision of this Act, be deemed to have been amended so as tobe in accord with the provision ofthisAct and shall have effectaccordingly.


48.( 1) The Public Enterprise (Monitoring) Act, 2009 isrepealed.

(2) Statutory Instruments made under the repealed Actshall continue in force as if made under this Act until it isamended or repealed under the provision ofthis Act.

(3) Anything made, established or done under therepealed Act, which could have been made, established or doneunder this Act shall continue in force and be deemed to be madeunder this Act until amended or revoked under this Act or ceaseto have effect by eftluxion oftime.

SCHEDULE 1

(Section 47)

LIST OF PUBLIC ENTERPRISES (Section 47)

Column 1

Seychelles Public TransportCorporation

Column 2

Minister of Home Affairsand Transport

Minister of Land Use andHousing

Property ManagementCorporation

Air Seychelles Limited Minister of Home Affairsand Transport

Office of the PresidentIsland Development CompanyLimited

Public Utilities Corporation Minister of Environmentand Energy

Minister of Home Affairsand Transport

Seychelles Civil AviationAuthority

Seychelles Petroleum CompanyLimited

Minister of Finance, Tradeand Investment

Repeal andSavings


Seychelles Trading Company Minister of Finance, TradeLimited and Investment

Praslin Transport Company Minister of Home AffairsLimited and Transport

Societe Seychelloise Minister of Finance, Traded'Investissement Limited and Investment

Development Bank of Seychelles Minister of Finance, Tradeand Investment

Housing Finance Company Minister of Finance, TradeLimited and Investment

Seychelles International Minister of Finance, TradeMercantile Banking Corporation and InvestmentLimited

Seychelles Savings Bank Minister of Finance, Tradeand Investment

Seychelles Pension Fund Minister of Finance, Tradeand Investment

Seychelles Ports Authority Minister of Home Affairsand Transport

Seychelles International Business Minister of Finance, TradeAuthority and Investment

L'Union Estate Company Minister of Finance, TradeLimited and Investment

Seychelles Postal Services Minister of Finance, Tradeand Investment

National Information Services Office of the PresidentAgency

Petro Seychelles Limited Office ofthe President


SCHEDULE 2

(Section 23)

APPOINTMENT OF DIRECTORS OF PUBLICENTERPRISES

1. The following rules shall apply to the appointment ofBoard Members of Public Enterprise-

(a) In relation to the Board-s-

(i) in each industry or sector, Board Membersare required to have specific skills, trainingand experience to relation to such industryor sector;

(ii) a full time Board Director, such as a retiredexecutive, will not occupy Memberships inmore than five Boards;

(iii) one individual cannot chair more than twoBoards at the same time;

(iv) no Board Member may delegate theirposition to a subordinate without the priorapproval of the Board and the ResponsibleMinister. Such delegations to be on ameeting by meeting basis;

(v) an ex-Chief Executive Officer of a PublicEnterprise cannot be appointed asChairperson of the Board of such PublicEnterprise within the first 3 years ofleavingthe enterprise.

(b) A person is disqualified to be appointed as aMember of the Board ifhe or she-


(i) is under 18years of age;

(ii) is an un-discharged bankrupt;

(iii) is mentally or physically incapable ofdischarging his or her functions as a BoardMember; or

(iv) has been convicted in Seychelles or:elsewhere of an offence punishable byimprisonment;

(v) was a Director or manager of a company atthe time the company was placed inreceivership or liquidation, whether suchreceivership or liquidation occurred inSeychelles or elsewhere and the person hadbeen responsible for that receivership orliquidation;

(vi) is a Member of the National Assembly,Minister, or a Constitutional Appointeeunless--

(a) the President has certified that suchappointment is necessary in the publicinterest; and

(b) the Membership shall be on atemporary basis for a period notexceeding one term.

2. A Board Member may be removed from office if theMember-

(a) fails to attend 3 consecutive meetings ofthe Boardwithout leave of absence granted by theChairperson of the Board, and in the case of theChairperson, without notice to the Board and theResponsible Minister;


(b) becomes bankrupt;

(c) becomes mentally or physically incapable ofdischarging the person's functions;

(d) is convicted in Seychelles or elsewhere of anoffence punishable by imprisonment;

(e) is convicted of an offence relating to the person'sfunctions as aDirector.

3. The President may remove any or all the BoardMembers ofa Public Enterprise if the Public Enterprisefails to comply with this Act or the governing law.

4. The application of the above procedures for appointmentand reappointment of Members shall apply-

(a) when each Board Member's current term ofappointment ends; or

(b) when a Board Member dies, resigns or is removedfrom office.

SCHEDULE 3(Section 27)

RULES RELATING TO BOARD MEETINGS

1. Every Board-

(a) shall hold an Annual Meeting not more than 3months after the close of the financial year of thePublic Enterprise-

(i) to consider and approve the report of theBoard, the audited financial statements andthe auditor's report for the financial year;

40 Supplement to Official Gazette [29th April 20 13]

(ii} to make recommendations on the paymentof dividends by the Public Enterprise; and

(iii) to deal with any financial or other matters ofthe Public Enterprise;

(b) shall hold a special meeting not more than 2months prior to the close of each financial year 01the Public Enterprise in order to consider andapprove the budget and the calendar of ordinarymeetings (of which there shall be at least one every3 months) of the next following financial year;and

(c) shall in addition to the meetings referred to inparagraphs (a) and (b), hold ordinary meetings-

(i) in accordance with the calendar of meetingsapproved under paragraph (b); but the Boardmay at any of its meetings amend thecalendar provided that it holds at least onemeeting every 3months;

(ii) when directed in writing (stating the reasonfor the calling of the meeting) by th.Responsible Minister; or

(iii) at the request in writing (stating the reasonfor the calling of the meeting) of any twoDirectors.

2. Where a meeting is convened in accordance withsubparagraph (c) (ii) or (iii) the notice of the meetingshall state the purpose ofthe meeting.

3. The quorum for a meeting of the Board of the PublicEnterprise shall be as follows-


Total number of Members Quorum

Five ThreeSix FourSeven to Eight FiveNine Six

4. The Chairperson or in the absence of the Chairperson,the Vice-Chairperson or, in the absence of both theChairperson and the Vice-Chairperson, a Directorelected by the other Directors for this purpose at themeeting, shall preside at a meeting of the Board.

5. At a meeting ofthe Board each Director has one vote inrespect of any matter which is before the Board for itsdecision but in the event of an equality of votes, theperson presiding at the meeting shall, in addition, have acasting vote.

6. Decisions ofthe Board shall be by a majority of votes ofthe Directors present and voting at a meeting.

7. A Director who has a direct or indirect interest in anymatter to be decided by the Board of a Public Enterpriseshall disclose the nature of the interest at a meeting of theBoard and shall not vote on the matter nor take part inany discussion in respect ofthat matter.

8. All orders, directions or decisions of a Board of a PublicEnterprise shall be given or notified under the hand ofthe Chairperson or such other Director as the Board mayappoint for this purpose.

9. Subject to this Schedule, the Board may regulate its ownproceedings.


SCHEDULE 4(Section 36)

MINIMUM REQUIREMENTS FOR ANNUALREPORT OF PUBLIC ENTERPRISES

1. The annual report of each Public Enterprise mustcontain the following particulars in addition to therequirements set out in the governing law-

(a) the audited financial statements, including astatement of.-

(i) financial position;

{ii) profit and loss;

(iii) changes in financial position;

(iv) the dividend payable;

(v) Cash flow, and

such other statements as may be necessary to show thefinancial results of the Public Enterprise during thafinancial year; and

(b) the auditor's report on those financial statementswhich-

(i) identifies those to whom it is addressed andthe financial statements towhich it relates;

(ii) states whether the accounts have beenaudited in accordance with the InternationalStandards onAuditing (ISA);

(iii) states whether it is prepared in accordancewith the International Financial Reporting


Standards (IFRS) as set by the InternationalAccounting Standards Board (IASB);

(iv) details any transactions which the auditorhas made for or on behalf of the PublicEnterprise;

(v) states whether in the opinion of the auditorthe accounts have or have not been preparedin accordance with the prOVISIOns ofapplicable laws;

(vi) states whether in the opinion of the auditorthe accounts do or do not give a true and fairview of the state of affairs of the PublicEnterprise and, in the case that they do not,state the reasons for such opinion;

(vii) states whether in the opinion of the auditorproper and adequate accounting recordshave or have not been kept;

(viii) states whether the auditor has received allthe information necessary for the purposesof audit and whether the auditor is or is notsatisfied with the information received;

(ix) states whether in the auditors opinion theinformation given by the Directors in theannual report in relation to the financial yearunder reference is or is not consistent withthe accounts;

(x) states any other matter which in the opinionofthe auditor needs to be stated.

(c) a statement of the performance of the PublicEnterprise in relation to the performance targetsdetailed in the statement of corporate intent;

44 Supplement to Official Gazette [29th April 20 13]

(d) a statement that presents an objective, balancedand understandable commentary on the PublicEnterprise's financial performance and position,its non-financial performance, and on its futureability tomeet its liabilities and commitments;

(e) details of any changes in the composition of theBoard during the year, including the appointmentof new Members, reappointments and an)removals;

(f) the number of meetings of the Board and ofcommittee meetings held and the committee'scomposition;

(g) brief statement of any significant complaintswhich have been made against the PublicEnterprise;

(h) judicial proceedings filed or likely to be filedagainst the Public Enterprise;

(i) where non-financial information was subject toexternal validation, details in this regard;

(j) brief details of the background of any Member of"the Board who served at any time during the year;'

(k) a statement of issues raised and recommendationsproposed on the entity by the Commission duringthe period and consecutive action taken bymanagement. The statement should also includereasons for, if no follow up action is taken;

(1) a description of any social service obligationsperformed during the year;

(m) a statement explaining (as a minimum) itsresponsibility for-


(i) approving the budget to provideauthorisation for the acquisition and use offinancial resources; .

(ii) preparing and providing financialstatements that fairly present the state ofaffairs of the Public Enterprise as at the endof the financial year and the results of itsoperations for that year;

(iii) maintaining an effective framework ofinternal control, risk management andappropriate governance procedures;

(iv) maintaining adequate accounting recordsand ensuring the consistent use ofappropriate accounting policies, supportedby reasonable and prudent judgements andestimates and ensuring adherence toapplicable accounting standards unless fullydisclosed, explained and quantified.

(n) Public Enterprise's financial statementsproviding-

(t) the amounts paid to the external audit forauditor and separately for non-audit

Y services, including a description of thenature and amounts paid for each of theservices undertaken;

(ii) an outline of the structure of the PublicEnterprise;

(iii) a review of financial performance;

(iv) internal and external factors influencing thePublic Enterprise's performance;

(v) significant events which may affect thePublic Enterprise's future performance;


(vi) significant post-balance sheet events;

(vii} discussion of relations with stakeholders,referring to significant changes;

(viii) financial and other effects of directions fromthe -Commission.

2. (a) AnAnnual Meeting shall be held not later than onemonth after signing of the Audited FinancialStatements at which the annual report will bepresented. Members of the Board, the ChiefExecutive Officer, the Chief Finance Officer andthe external auditor should attend the meeting andshould be available to answer questions.

(b) The approved annual report of a Public Enterpriseshall be published and made available to allstakeholders.

3. The transition period for preparation of annual financialstatements in accordance with IFRS shall be 3 yearsfrom the date of commencement of this Act.

SCHEDULE 5(Section 24 (b)

DUTIES AND LIABILITIES OF DIRECTORS

1. It shall be the duty of the Directors of a PublicEnterprise-

(a) to exercise their powers in accordance with thisAct and within the limits and subject to theconditions and restrictions established by thePublic Enterprise's memorandum, articles orgoverning law;


(b) to obtain the authorisation of the Board beforedoing any act or entering into any transaction forwhich the authorisation or consent of a generalmeeting is required by this Act or by the PublicEnterprise's memorandum or articles, orgoverning law;

(c) to exercise their powers in good faith in what theyreasonably consider to be the interests of theshareholders of the Public Enterprise as a wholeand for the respective purposes for which suchpowers are explicitly or impli edly conferred;

(d) to declare to the Public Enterprise for anymonetary gain, or the value of any other gain oradvantage, obtained by them in connection withthe exercise of their powers, or by reason of theirposition as Directors of the Public Enterprise,except remuneration, pensions, provisions andcompensation for loss of office in respect of theirdirectorships of any Public Enterprise which arelawfully authorised or approved by a Boardresolution and (where necessary) by the Cabinet;

(e) not to make use of any information received bythem respectively as Directors otherwise than forthe benefit of the shareholders of the PublicEnterprise as a whole, either during theirrespective terms of office or thereafter; .

(f) not to compete with the Public Enterprise orbecome a Director or officer of a competingcompany that operates in the same line or activity;

(g) if Directors have any interest, whether direct orindirect, immediate or prospective, in any contractor transaction or proposed contract or transactionwith the Public Enterprise, to disclose each oftheirrespective interests to the Board of the Public

--'


Enterprise at which the contract or transaction isfirst taken into consideration, and in such writtendisclosure to state the nature and extent of theirrespective interests and the effect or probableeffect on them of the contract or transaction; and

(h) not to use any assets of the Public Enterprise forany illegal or improper purpose, and not to do, orknowingly allow to be done, anything by which thePublic Enterprise assets may be damaged or lost(otherwise than in the ordinary course of carryingon its business);

(i) to transfer forthwith to the Public Enterprise allcash or assets acquired on its behalf (whetherbefore or after its incorporation) or as the result ofemploying its cash or assets, and until such transferis effected to hold such cash or assets on behalf ofthe Public Enterprise and to use it only for thepurposes of the Public Enterprise;

(j) to attend Board meetings ofthe Public Enterprisewith reasonable regularity, unless prevented fromso doing by illness or otherreasonable excuse.

2. The duties imposed by this section shall be owed to thePublic Enterprise, and not to the Board Member"shareholders, officers or creditors of the Publi",Enterprise, but-

(a) an application may be made to the court by anyshareholder for a declaration that any act ortransaction, or proposed act or transaction, by theDirectors or any Director or former Directorinvolves a breach of any of their said duties, and ifthe court makes such a declaration it may issue aninjunction to restrain the Directors or any Directoror former Director from doing any such proposedact or entering into any such proposed transaction;and


(b) an action for damages for breach of the said dutiesmay be brought in the name of. the PublicEnterprise by the Board.

3. For the purpose ofthis section, a general notice given tothe Board by a Responsible Minister or Director to theeffect that he or she is a Member, shareholder, or officerof a specified Public Enterprise and is to be regarded asinterested in any contract which may, after the date of thenotice, be made with that Public Enterprise, shall bedeemed to be a sufficient declaration of interest inrelation to any contract so made: Provided that no suchnotice shall be of effect unless it is given at a Boardmeeting.

4. Any person who commits a breach of a duty imposed onhim by paragraphs (d), (e), (t), (h) or (j) of subsection (1)shall, without prejudice to the generality of theexpression, be deemed to have committed a seriousbreach of duty.

5. Aperson who-

(a) knowingly commits a breach of any duty imposedon him by subsection (1) of this section; or

(..,

(b) commits a breach of a duty imposed on him byparagraphs (d), (e), (g), (h) or (i) of Subsection (1);shall be guilty of an offence punishable arid hencebe held liable as per the legal proceedings of thePenal Code.

6. If a Public Enterprise has a subsidiary, Directors of thePublic Enterprise and the subsidiary shall owe the sameduties under subsection (1) to the Public Enterprise inrespect of the affairs of the subsidiary and their conductin relation to the subsidiary as though the Public


Enterprise and the subsidiary were one, and the PublicEnterprise owned the subsidiary's assets andundertaking, and the whole of this section shall then beapplied accordingly, provided that nothing in thissubsection shall affect the duties of the Directors of thesubsidiary toward the subsidiary and the remediesconferred by this section for the breach of any suchduties.

I certify that this is a correct copy of the Bill which waspassed by the National Assembly on 26th March, 2013.

Azarel EmestaClerk to the National Assembly

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