- CHAPTER 1 INTERPRETATION AND APPLICATION OF ACT
- CHAPTER 2 ADMINISTRATION OF ACT
- Part 1 Companies Registration Office and Registrar
- Companies Registration Office and register
- Seal of the Companies Registration Office
- Appointment of Registrar, Deputy Registrar and delegation of power
- Exemption from liability
- Inspection and copies of documents in Companies Registration Office
- Manner of payment of fees to Companies Registration Office
- Annual report by Registrar
- Part 2 Powers of Court and Procedure
- Part 3 Regulations and Notices
- Part 4 Standing Advisory Committee
- Part 1 Companies Registration Office and Registrar
- CHAPTER 3 TYPES AND FORMS OF COMPANIES, CONVERSIONS AND LIMITATIONS ON PARTNERSHIPS AND ASSOCIATIONS
- Part 1 Types of Companies
- Part 2 Conversion of Companies
- Conversion of public company, having share capital into private company, and vice versa
- Conversion of company into incorporated non-profit association or company limited by guarantee
- Conversion of company limited by guarantee into company having share capital
- Conversion of unlimited company
- Notice of intended conversion of company
- Contents and form of articles on conversion
- Registration of conversion
- Effect of conversion and alteration of other registers
- Part 3 Conversion of Companies and Close Corporations
- Part 4 Limitations on Partnerships and Associations for Gain
- CHAPTER 4 FORMATION, OBJECTS, CAPACITY, POWERS, NAMES, REGISTRATION AND INCORPORATION OF COMPANIES, INCIDENTAL MATTERS AND DEREGISTRATION
- Part 1 Formation, Capacity, Powers and Objects
- Mode of forming company
- Capacity, powers and objects
- Ancillary objects and powers of company
- Dealings between company and other persons
- No constructive knowledge
- Power as to pre-incorporation contracts
- Loans made and security provided by subsidiary
- No financial assistance to purchase shares of company or holding company
- Company not to be member of its holding company
- No division into interests, rights to profits or shares in guarantee companies
- Part 2 Names of Companies
- Names of companies not to be undesirable
- Reservation of name
- Registration of shortened form of name or defensive name
- Change of name and effect
- Order to change name
- Provisions as to order to change name
- Registrar may call for affidavits and shall give reasons for decisions as to names
- Recourse to Court in matters as to names
- Formal requirements as to names of companies
- Use and publication of name by company
- Improper use of word “Limited” or “Incorporated” an offence
- Savings provisions regarding certain existing name registrations
- Part 3 Memorandum of Association
- Part 4 Alteration of Memorandum
- Part 5 Articles of Association
- Part 6 Registration, Incorporation and Deregistration
- Registration of memorandum and articles
- Memorandum and articles to be in official language
- Certificate of incorporation and its evidential value
- Effect of incorporation on company and members
- Liability of members where membership reduced below minimum
- Rights of members to copies of memorandum and articles
- Cancellation of registration of memorandum and articles
- Part 7 Incidental Matters
- Part 1 Formation, Capacity, Powers and Objects
- CHAPTER 5 SHARE CAPITAL, ACQUISITION BY COMPANIES OF OWN SHARES, SHARES, ALLOTMENT AND ISSUE OF SHARES, MEMBERS AND REGISTER OF MEMBERS, DEBENTURES, TRANSFER AND RESTRICTIONS ON OFFERING SHARES FOR SALE
- Part 1 Share Capital
- Division of share capital into shares having par value or having no par value
- Company may alter share capital and shares
- Premiums received on issue of shares to be share capital, and limitation on application thereof
- Proceeds of issue of shares of no par value to be stated capital
- Effect of conversion of par value share capital into no par value share capital and vice versa
- Payment of interest out of capital in certain cases
- Restriction of power to pay commission and discounts
- Issue of shares of par value at discount
- Issue price of shares of no par value requiring special resolution
- Part 2 Acquisition by Companies of Own Shares
- Approval of acquisition of own shares by special resolution
- Company to be solvent
- Consequences of acquisition with regard to shares
- Liability of directors and shareholders under certain circumstances
- Procedure of acquisition of certain shares by company
- Enforceability of contracts for acquisition by company of certain shares
- Subsidiaries may acquire certain shares in holding company
- Payments to shareholders
- Part 3 Shares and Allotment and Issue
- Nature of shares and payment for shares
- Uncertificated securities
- Register and return as to allotments
- Certificate of shares or stock
- Numbering of shares and share certificates
- Limitation of time for issue of share certificates
- Validation of irregular creation, allotment or issue of shares
- Redeemable preference shares
- Conversion of shares into certain preference shares
- Conversion of shares into stock
- Share warrants to bearer
- Variation of rights in respect of shares
- No offer of shares for sale to public without statement
- Part 4 Members and Register of Members
- Members of a company
- Trusts in respect of shares
- Register of members
- Index to register of members
- Branch registers in foreign countries
- Provisions as to branch register
- Register of members to be evidence
- Where register of members to be kept
- Disposal of closed accounts in register
- Offences in respect of register of members
- Inspection of register of members
- Power to close register of members
- Rectification of register of members
- Part 5 Debentures
- Creation and issue of debentures
- Security for debentures
- Registration of bonds and annexure to bonds and deeds of pledge
- Debenture itself may be registered
- Issue of debentures at different dates and ranking of preference
- Rights of debenture holders
- Director or officer not to be trustee for debenture holders
- Liability of trustee for debenture holders
- Power to re-issue redeemed debentures in certain cases
- Debenture to be described as secured or unsecured
- Form of debentures or debenture certificates
- Register of pledges and bonds
- Register of debenture holders
- Registers may be kept where made up
- Inspection of registers and copies and extracts
- Failure to keep registers
- Part 6 Forgery of Certificates as to Shares, Debentures and other Securities
- Part 7 Transfer of Shares and Debentures
- Registration of transfer of shares or interests
- Definitions for purpose of transfer of listed shares or interests
- Manner in which securities may be transferred
- Certification by company that security has been lodged for transfer
- Duty of company with reference to person under contractual disability
- Warranty and indemnity by persons lodging documents of transfer
- Notice of refusal to register transfer and limitation of time for issue of certificates on transfer
- Disclosure of beneficial interest in securities
- Part 1 Share Capital
- CHAPTER 6 OFFERING OF SHARES AND PROSPECTUS
- Part 1 Interpretation
- Part 2 Offers to Public
- Restrictions on offers to public
- Offers not being offers to public
- No offer for subscription to public without prospectus
- Approval by stock exchange requirement for letters of allocation
- Rights offers
- No offer for sale to public without prospectus
- Application form for shares to be attached to prospectus
- Part 3 Prospectus
- Matters to be stated in prospectus
- Statement on face of issued prospectus
- Consent of person named as director
- Consent by experts and others
- Contracts and translations to be attached to prospectus
- Where issue is underwritten
- Signing, date and date of issue, of prospectus
- Registration of prospectus
- Time limit for issue of prospectus
- Advertisement as to prospectus
- Waiver of requirements of this Chapter void
- Variation of contract mentioned in prospectus
- Liability for untrue statements in prospectus
- Liability of experts and others
- Offences in respect of untrue statements in prospectus
- No diminution of liability under any other law or common law
- Part 4 Allotment and Acceptance after Offer to Public
- Time limit as to allotment or acceptance
- No allotment unless minimum subscription received
- No allotment or acceptance if application form not attached to prospectus
- Voidable allotment
- Minimum interval before allotment or acceptance
- Conditional allotment if prospectus states shares to be listed by stock exchange
- CHAPTER 7 ADMINISTRATION OF COMPANIES
- Part 1 General
- Postal address and registered office of company
- Names of directors to be stated on certain documents of company
- Certificate to commence business
- Annual return
- Annual duty
- Annual duty payable by external company
- Enforcement of duty of company to make returns to Registrar
- Extension of time
- Additional fees in respect of late submissions or late payment of annual duty
- Part 2 Meetings of Company
- Part 3 Voting Rights and Voting
- Part 4 Special Resolutions
- Part 5 Minutes, Minute Books and Reports of Meetings
- Part 1 General
- CHAPTER 8 DIRECTORS
- Part 1 Number and Appointment
- Number of directors
- Determination of number of directors and appointment of first directors
- Appointment of directors to be voted on individually
- Consent to act as director or officer
- Filling of vacancy where director is disqualified or removed
- Qualification shares of directors
- Validity of acts where appointment is defective
- Part 2 Register of Directors and Officers
- Part 3 Disqualifications of Directors
- Part 4 Restrictions on Directors, their Powers and Certain Acts
- Restriction of power of directors to issue share capital
- Restriction on issue of shares and debentures to directors
- Share option plans where director is interested
- Directors not to deal in options in respect of listed shares and debentures
- Prohibition of tax free payments to directors
- Prohibition of loans to, or security in connection with transactions by, directors and managers
- Payments to directors for loss of office or in connection with arrangements and take-over schemes
- Disposal of undertaking or greater part of assets of company
- Part 5 Interests of and Dealings by Directors and Others in Shares of Company
- Definitions for purposes of this Part
- Register of interests of directors and others in shares and debentures of company
- Directors to determine officers for purpose of register
- Duty of directors and others as to register of interests
- Offence to deal in shares with inside information before public announcement
- Part 6 Interests of Directors and Officers in Contracts
- Duty of director or officer to disclose interest in contracts
- Manner of and time for declaration of interest
- Written resolution where director is interested
- Disclosure by interested director or officer acting for company
- When particulars of interest to be stated in notice of meeting
- Minuting of declarations of interest
- Register of interests in contracts of directors and officers and inspection
- Duty of auditor as to register of interests in contracts
- Part 7 Proceedings at Meetings of Directors and Managers
- Keeping of minutes of meetings of directors and managers
- Validity of proceedings at meetings of directors and managers
- When resolution at adjourned meetings of directors and managers effective
- Attendance register of meetings of directors and managers
- Duty of auditor as to minute books and attendance register
- Part 8 Indemnity and Relief of, and Offences by, Directors and Others
- Part 1 Number and Appointment
- CHAPTER 9 REMEDIES OF MEMBERS AND INVESTIGATIONS
- CHAPTER 10 AUDITORS
- Part 1 Appointment
- First appointment of auditor of company
- Annual appointment of auditor
- Failure to appoint auditor
- Minister may appoint joint auditor
- Filling of casual vacancies
- Firm may be appointed auditor
- Disqualification for appointment as auditor
- Consent by, and notice, entry and lodging of information pertaining to, auditor
- Part 2 Removal and Resignation of Auditor
- Part 3 Rights, Duties and Remuneration
- Part 1 Appointment
- CHAPTER 11 ACCOUNTING AND DISCLOSURE
- Part 1 Accounting Records
- Part 2 Accounting by Holding Companies
- Obligation to lay group statements before annual general meeting
- Group annual financial statements
- Where annual financial statements are to be consolidated
- Where group annual financial statements need not deal with subsidiary
- Accounting periods of company and subsidiary to be the same
- Duty of auditor to report on decisions of directors on group annual financial statements
- Part 3 Disclosure of Certain Matters in Financial Statements and Further Requirements
- Disclosure of loans to and security for benefit of directors and managers
- Disclosure of loans made to and security provided for benefit of directors or managers before their appointment
- Disclosure of emoluments and pensions of directors
- Approval and signing of financial statements
- Duty of company to send annual financial statements to members and Registrar
- Report of directors
- Part 4 Duties of Auditor as to Annual Financial Statements
- Part 5 Interim Accounting
- Half-yearly interim reports
- Provisional annual financial statements
- Form and contents of interim report and provisional annual financial statements
- Copies of interim report and provisional annual financial statements to be lodged with Registrar
- Registrar may grant exemptions and extensions of time
- Offences under sections 310 to 313, inclusive
- Part 6 Right of Members and Others to Copies of Annual Financial Statements and Interim Reports
- CHAPTER 12 COMPROMISE, ARRANGEMENT AND AMALGAMATION
- Compromise and arrangement between company, its members and creditors
- Information as to compromises and arrangements
- Provisions facilitating reconstruction or amalgamation
- Contents of take-over statement by offeror
- Duty of directors of offeree company to furnish take-over statement
- Contents of take-over statement by directors of offeree company
- Statement by the directors of offeree company in case of counter bid
- Requirements for take-over offer may be waived
- Liability and offences in regard to take-over offers
- Power to acquire shares of minority in take-over scheme
- CHAPTER 13 EXTERNAL COMPANIES
- Part 1 Registration
- Part 2 Administrative and Other Duties of External Companies
- External company to have auditor
- External company to have person authorised to accept service
- Register of directors and managers and secretaries and power of Registrar to request particulars
- Changes in memorandum of external company
- External company to keep accounting records and lodge annual financial statements and interim report
- External companies to lodge annual return
- Further administrative duties of external company
- Deregistration of external company
- Offences in respect of external companies
- Transfer of undertaking of external company and exemption from transfer duty under scheme
- Registration of external companies as companies in Namibia
- CHAPTER 14 WINDING-UP OF COMPANIES
- Part 1 General
- Definitions for purposes of winding-up of companies
- Application of repealed Act, where winding-up has already commenced
- Law of insolvency to apply with the necessary changes
- Voidable and undue preferences
- Dispositions and share transfers after winding-up void
- Application of assets and costs of winding-up
- Modes of winding-up
- Part 2 Winding-up by Court
- Part 3 Voluntary Winding-up
- Part 4 General Provisions Affecting all Windings-up
- Court may stay or set aside winding-up
- Notice to creditors or members in review by Court in winding-up
- Notice of winding-up of company
- Notice of winding-up to certain officials and their duties
- Stay of legal proceedings before winding-up order granted
- Legal proceedings suspended and attachments void
- Inspection of records of company being wound up
- Custody of or control over, and vesting of property of, company
- Court may order directors and others to deliver property to liquidator or to pay into bank
- Directors and others to submit statement of affairs
- Change of address of directors and secretaries to be given to liquidator
- Master to summon first meetings of creditors and members and purpose thereof
- Offences in securing nomination as liquidator
- Restriction on voting at meetings
- Claims and proof of claims
- Part 5 Liquidators
- Appointment of liquidator
- Appointment of provisional liquidator
- Determination of person to be appointed liquidator
- Master may decline to appoint nominated person as liquidator
- Remedy of aggrieved persons
- Persons disqualified from appointment as liquidator
- Persons disqualified by Court from being appointed or acting as liquidators
- Master may appoint co-liquidator at any time
- Appointment, commencement of office and validity of acts of liquidator
- Title of liquidator
- Filling of vacancies
- Leave of absence or resignation of liquidator
- Removal of liquidator by Master and by Court
- Control of Master over liquidators
- Plurality of liquidators, liability and disagreement
- Cost and reduction of security by liquidator
- Remuneration of liquidator
- Certificate of completion of duties by liquidator and cancellation of security
- Part 6 Powers of Liquidators
- Part 7 Duties of Liquidators
- General duties
- Duty of liquidator to give information to Master
- Duty of liquidator to keep records and inspection
- Banking accounts and investments
- Duties of liquidator as to contributories
- Notices to contributories and objections
- Recovery of contributions and nature of liability
- Adjustment of rights of contributories
- Evidence as to contributions and contributories
- Duty of liquidator to expose offences and to report
- Prosecutor-General may make application to Court for disqualification of director
- Duty of liquidator to present report to creditors and contributories
- Duty of liquidator to file liquidation and distribution account
- Master may grant extension of time for lodging account
- Failure of liquidator to lodge account or to perform duties
- Places for and periods of inspection of account
- Objections to account
- Confirmation of account
- Distribution of estate
- Duty of liquidator as to receipts and unpaid dividends
- Payment of money deposited with Master
- Part 8 Meetings in Winding-up
- Part 9 Examination of Persons in Winding-up
- Part 10 Dissolution of Companies and other Bodies Corporate
- Part 11 Personal Liability of Delinquent Directors and Others and Offences
- Part 1 General
- CHAPTER 15 JUDICIAL MANAGEMENT
- Circumstances in which company may be placed under judicial management
- Provisional judicial management order
- Custody of property and appointment of provisional judicial manager
- Duties of provisional judicial manager
- Purpose of meetings convened under section 435(b)(ii)
- Return day of provisional order of judicial management and powers of Court
- Duties of final judicial manager
- Application of assets during judicial management
- Remuneration of provisional judicial manager or judicial manager
- Pre-judicial management creditors may consent to preference
- Voidable and undue preferences in judicial management
- Period of judicial management to be discounted in determining preference under mortgage bond
- Position of auditor in judicial management
- Application to judicial management of certain provisions of winding-up
- Cancellation of judicial management order
- CHAPTER 16 TRANSITIONAL AND MISCELLANEOUS PROVISIONS
- CHAPTER 17 REPEAL OF LAWS AND COMMENCEMENT OF ACT
- SCHEDULE 1
- SCHEDULE 2
- SCHEDULE 3
- SCHEDULE 4
- SCHEDULE 5
GOVERNMENT GAZETTE
OF THE
REPUBLIC OF NAMIBIA
N$40.00 WINDHOEK - 30 December 2004 No.3362 CONTENTS Page GOVERNMENT NOTICE No. 288 Promulgation of Companies Act, 2004 (Act No.28 of 2004), of the Parliament .......................................................................................................... 1 _______________ Government Notice
OFFICE OF THE PRIME MINISTER
No. 288 2004
PROMULGATION OF ACT
OF PARLIAMENT
The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 28 of 2004: Companies Act, 2004.
ACT
To provide for the incorporation, management and liquidation of companies; and to provide for incidental matters.
(Signed by the President on 19 December 2004)
ARRANGEMENT OF SECTIONS
Section
CHAPTER 1
INTERPRETATION AND APPLICATION OF ACT
- Definitions
- General application of Act
- Application of Act restricted
CHAPTER 2
ADMINISTRATION OF ACT
Part 1
Companies Registration Office and Registrar
- Companies Registration Office and register
- Seal of Companies Registration Office
- Appointment of Registrar, Deputy Registrar and delegation of power
- Exemption from liability
- Inspection and copies of documents in Companies Registration Office
- Manner of payment of fees to Companies Registration Office
- Annual report by Registrar
Part 2
Powers of Court and Procedure
- Security for costs in legal proceedings by companies and bodies corporate
- Copies of Court orders to be transmitted to Registrar and Master
Part 3
Regulations and Notices
- Regulations
- Prohibition of disclosure of, and exemption from obligation to disclose, certain information
- Notices amending or adding to Schedules
Part 4
Standing Advisory Committee
- Establishment of Standing Advisory Committee
- Functions and powers of SAC
- Tenure of office
- Administration, finance and procedures of SAC
No.3362 Government Gazette 30 December 2004 3 Act No. 28, 2004 COMPANIES ACT, 2004 CHAPTER 3
TYPES AND FORMS OF COMPANIES, CONVERSIONS AND LIMITATIONS
ON PARTNERSHIPS AND ASSOCIATIONS
Part 1
Types of Companies
- Companies having share capital and companies not having share capital
- Non-profit associations
- Meaning of "private company" and cessation of its privileges
- Incorporation of certain branches of foreign companies and non-profit associations
Part 2
Conversion of Companies
24. Conversion of public company, having share capital into private company, and
vice versa - Conversion of company into incorporated non-profit association or company limited by guarantee
- Conversion of company limited by guarantee into company having share capital
- Conversion of unlimited company
- Notice of intended conversion of company
- Contents and form of articles on conversion
- Registration of conversion
- Effect of conversion and alteration of other registers
Part 3
Conversion of Companies and Close Corporations
- Conversion of company into close corporation
- Conversion of close corporation into company
- Effect of conversion of close corporation into company
Part 4
Limitations on Partnerships and Associations for Gain
- Prohibition of associations or partnerships exceeding 20 members and exemption
- Unregistered associations carrying on business for gain not corporate bodies
CHAPTER 4
FORMATION, OBJECTS, CAPACITY, POWERS, NAMES, REGISTRATION
AND INCORPORATION OF COMPANIES, INCIDENTAL MATTERS AND
DEREGISTRATION
Part 1
Formation, Capacity, Powers and Objects
- Mode of forming company
- Capacity, powers and objects
- Ancillary objects and powers of company
- Dealings between company and other persons
- No constructive knowledge
- Power as to pre-incorporation contracts
- Loans made and security provided by subsidiary
- No financial assistance to purchase shares of company or holding company
- Company not to be member of its holding company
- No division into interests, rights to profits or shares in guarantee companies
Part 2
Names of Companies
- Names of companies not to be undesirable
- Reservation of name
- Registration of shortened form of name or defensive name
- Change of name and effect
- Order to change name
- Provisions as to order to change name
- Registrar may call for affidavits and must give reasons for decisions as to names
- Recourse to Court in matters as to names
- Formal requirements as to names of companies
- Use and publication of name by company
- Improper use of word "Limited" or "Incorporated" an offence
- Savings regarding certain existing name registrations
Part 3
Memorandum of Association
- Requirements for memorandum of association
- Memorandum may contain special conditions and provide for unlimited liability of directors
- Form and signing of memorandum
Part 4
Alteration of Memorandum
- Alteration of memorandum as to special conditions and other provisions
- Lodgment of altered memorandum
Part 5
Articles of Association
- Companies to have articles
- Form and signing of articles
- Consolidation of articles
- Alteration of articles
Part 6
Registration, Incorporation and Deregistration
- Registration of memorandum and articles
- Memorandum and articles to be in official language
- Certificate of incorporation and its evidential value
- Effect of incorporation on company and members
- Liability of members where membership reduced below minimum
- Rights of members to copies of memorandum and articles
- Cancellation of registration of memorandum and articles
Part 7
Incidental Matters
- Issued copies of memorandum or articles to embody alterations
- Contracts by companies
- Promissory notes and bills of exchange
- Service of documents on companies
- Arbitration between companies and others
CHAPTER 5
SHARE CAPITAL, ACQUISITION BY COMPANIES OF OWN SHARES,
SHARES, ALLOTMENT AND ISSUE OF SHARES, MEMBERS AND
REGISTER OF MEMBERS, DEBENTURES, TRANSFER AND
RESTRICTIONS ON OFFERING SHARES FOR SALE
Part 1
Share Capital
- Division of share capital into shares having par value or having no par value
- Company may alter share capital and shares
- Premiums received on issue of shares to be share capital, and limitation on application
- Proceeds of issue of shares of no par value to be stated capital
- Effect of conversion of par value share capital into no par value share capital and
vice versa - Payment of interest out of capital in certain cases
- Restriction of power to pay commission and discounts
- Issue of shares of par value at discount
- Issue price of shares of no par value requiring special resolution
Part 2
Acquisition by Companies of own Shares
- Approval of acquisition of own shares by special resolution
- Company to be solvent
- Consequences of acquisition with regard to shares
- Liability of shareholders under certain circumstances
- Procedure of acquisition of certain shares by company
- Enforceability of contracts for acquisition by company of certain shares
- Subsidiaries may acquire certain shares in holding company
- Payments to shareholders
Part 3
Shares and Allotment and Issue
- Nature of shares and payment for shares
- Uncertificated securities
- Register and return as to allotments
- Certificate of shares or stock
- Numbering of shares and share certificates
- Limitation of time for issue of share certificates
- Validation of irregular creation, allotment or issue of shares
- Redeemable preference shares
- Conversion of shares into certain preference shares
- Conversion of shares into stock
- Share warrants to bearer
- Variation of rights in respect of shares
- No offer of shares for sale to public without statement
Part 4
Members and Register of Members
- Members of company
- Trusts in respect of shares
- Register of members
- Index to register of members
- Branch registers in foreign countries
115. Provisions as to branch register 116. Register of members to be evidence 117. Where register of members to be kept 118. Disposal of closed accounts in register 119. Offences in respect of register of members 120. Inspection of register of members 121. Power to close register of members 122. Rectification of register of members Part 5 Debentures 123. Creation and issue of debentures 124. Security for debentures 125. Registration of bonds and annexure to bonds and deeds of pledge 126. Debenture itself may be registered 127. Issue of debentures at different dates and ranking of preference 128. Rights of debenture holders 129. Director or officer not to be trustee for debenture holders 130. Liability of trustee for debenture holders 131. Power to re-issue redeemed debentures in certain cases 132. Debenture to be described as secured or unsecured 133. Form of debentures or debenture certificates 134. Register of pledges and bonds 135. Register of debenture holders 136. Registers may be kept where made up 137. Inspection of registers and copies and extracts 138. Failure to keep registers Part 6 Forgery of Certificates as to Shares, Debentures and other Securities 139. Forgery, impersonation and unlawful engravings Part 7 Transfer of Shares and Debentures 140. Registration of transfer of shares or interests 141. Definitions for purpose of transfer of listed shares or interests 142. Manner in which securities may be transferred 143. Certification by company that security has been lodged for transfer 144. Duty of company with reference to person under contractual disability 145. Warranty and indemnity by persons lodging documents of transfer 146. Notice of refusal to register transfer and limitation of time for issue of certificates on transfer 147. Disclosure of beneficial interest in securities CHAPTER 6 OFFERING OF SHARES AND PROSPECTUS Part 1 Interpretation 148. Definitions for purposes of offering of shares and prospectus Part 2 Offers to Public 149. Restrictions on offers to public
150. Offers not being offers to public 151. No offer for subscription to public without prospectus 152. Approval by stock exchange requirement for letters of allocation 153. Rights offers 154. No offer for sale to public without prospectus 155. Application form for shares to be attached to prospectus Part 3 Prospectus 156. Matters to be stated in prospectus 157. Statement on face of issued prospectus 158. Consent of person named as director 159. Consent by experts and others 160. Contracts and translations thereof to be attached to prospectus 161. Where issue is underwritten 162. Signing, date and date of issue, of prospectus 163. Registration of prospectus 164. Time limit for issue of prospectus 165. Advertisement as to prospectus 166. Waiver of requirements of this Chapter void 167. Variation of contract mentioned in prospectus 168. Liability for untrue statements in prospectus 169. Liability of experts and others 170. Offences in respect of untrue statements in prospectus 171. No diminution of liability under any law or common law Part 4 Allotment and Acceptance after Offer to Public 172. Time limit as to allotment or acceptance 173. No allotment unless minimum subscription received 174. No allotment or acceptance if application form not attached to prospectus 175. Voidable allotment 176. Minimum interval before allotment or acceptance 177. Conditional allotment if prospectus states shares to be listed by stock exchange CHAPTER 7 ADMINISTRATION OF COMPANIES Part 1 General 178. Postal address and registered office of company 179. Names of directors to be stated on certain documents of company 180. Certificate to commence business 181. Annual return 182. Annual duty 183. Annual duty payable by external company 184. Enforcement of duty of company to make returns to Registrar 185. Extension of time 186. Additional fees in respect of late submissions or late payment of annual duty Part 2 Meetings of Company 187. Annual general meeting 188. General meetings
189. Calling of general meetings on requisition by members 190. Convening of general meetings by Registrar 191. General meetings on order of Court 192. Meetings of company with one member 193. Duty of company to circulate notice of resolutions and statements by members 194. Notice of meetings and resolutions 195. Manner of giving notice 196. Representation of company or other body corporate at certain meetings 197. Representation of members at meetings by proxies 198. Quorum for meetings 199. Chairperson of meetings 200. Compulsory adjournment of meetings Part 3 Voting Rights and Voting 201. Voting rights of shareholders 202. Voting rights of preference shareholders 203. Determination of voting rights 204. Exceptions as regards voting rights 205. Exercise of voting rights 206. Right to demand poll Part 4 Special Resolutions 207. Requirements for special resolutions 208. Registration of special resolutions 209. Alteration of memorandum or articles to pass special resolution 210. Special resolution to lapse unless registered 211. Dates on which resolutions take effect Part 5 Minutes, Minute Books and Reports of Meetings 212. Keeping of minutes of meetings 213. Validity of proceedings 214. Right of members to inspect minute books 215. Publication of reports of meetings CHAPTER 8 DIRECTORS Part 1 Number and Appointment 216. Number of directors 217. Determination of number of directors and appointment of first directors 218. Appointment of directors to be voted on individually 219. Consent to act as director or officer 220. Filling of vacancy where director is disqualified or removed 221. Qualification shares of directors 222. Validity of acts where appointment is defective Part 2 Register of Directors and Officers 223. Register of directors, officers and corporate secretaries 224. Duties of directors and others and of company in respect of register
Part 3 Disqualifications of Directors 225. Disqualifications of directors 226. Disqualification of directors, officers and others by Court 227. Register of disqualification orders 228. Removal of directors and procedures in that regard Part 4 Restrictions on Directors, their Powers and Certain Acts 229. Restriction of power of directors to issue share capital 230. Restriction on issue of shares and debentures to directors 231. Share option plans where director is interested 232. Director not to deal in options in respect of listed shares and debentures 233. Prohibition on tax free payments to directors 234. Prohibition of loans to, or security in connection with transactions by, directors and managers 235. Payments to directors for loss of office or in connection with arrangements and take-over schemes 236. Disposal of undertaking or greater part of assets of company Part 5 Interests of and Dealings by Directors and Others in Shares of Company 237. Definitions for purposes of this Part 238. Register of interests of directors and others in shares and debentures of company 239. Directors to determine officers for purpose of register 240. Duty of directors and others as to register of interests 241. Offence to deal in shares with inside information before public announcement Part 6 Interests of Directors and Officers in Contracts 242. Duty of director or officer to disclose interest in contracts 243. Manner of and time for declaration of interest 244. Written resolution where director is interested 245. Disclosure by interested director or officer acting for company 246. When particulars of interest to be stated in notice of meeting 247. Minuting of declarations of interest 248. Register of interests in contracts of directors and officers and its inspection 249. Duty of auditor as to register of interests in contracts Part 7 Proceedings at Meetings of Directors and Managers 250. Keeping of minutes of meetings of directors and managers 251. Validity of proceedings at meetings of directors and managers 252. When resolution at adjourned meetings of directors and managers becomes effective 253. Attendance regis ter of meetings of directors and managers 254. Duty of auditor as to minute books and attendance register Part 8 Indemnity and Relief of, and Offences by, Directors and Others 255. Exemption from indemnity against liability of directors, officers or auditors 256. Relief of directors and others by Court in certain cases 257. False statements and evidence
- Falsification of books and records
- False statement by directors and others
CHAPTER 9
REMEDIES OF MEMBERS AND INVESTIGATIONS
Part 1
Relief from Oppression
260. Remedy of member in case of oppressive or unreasonably prejudicial conduct
Part 2
Inquiry into Membership and Ownership of Shares and Control of Company
- Power of Registrar to request information concerning shares and members
- Appointment and powers of inspectors to investigate financial interest in and control of company
- Power to require information as to interest in shares or debentures
- Power to impose restrictions on shares or debentures
Part 3
Investigation into Affairs of Company
- Inspection of affairs of company on application of members
- Investigation of affairs of company in other cases
- Power of inspector to conduct investigation into affairs of related companies
- Production of documents and evidence on investigation
- Report of inspector
- Proceedings on report of inspector
Part 4
Matters Incidental to Investigations
- Expenses of and incidental to investigation of affairs of company
- Saving in respect of legal practitioners and bankers
- Report of inspectors to be evidence
Part 5
Proceedings on Behalf of Companies
- Initiation of proceedings on behalf of company by member
- Powers of curator
- Security for costs by applicant for appointment of curator
CHAPTER 10
AUDITORS
Part 1
Appointment
- First appointment of auditor of company
- Annual appointment of auditor
- Failure to appoint auditor
- Minister may appoint joint auditor
- Filling of casual vacancies
- Firm may be appointed auditor
- Disqualification for appointment as auditor
- Consent by, and notice, entry and lodging of information pertaining to, auditor
Part 2
Removal and Resignation of Auditor
- Removal of auditor appointed by directors or Registrar, and filling of vacancy
- Removal of auditor and appointment of new auditor
- Special notice for removal of auditor
- Resignation of auditor
Part 3
Rights, Duties and Remuneration
- Right of auditor to access of books and to be heard at general meetings
- Duties of auditor
- Remuneration of auditor
CHAPTER 11
ACCOUNTING AND DISCLOSURE
Part 1
Accounting Records
- Duty of company to keep accounting records
- Determination of financial year of company
- Duty to make out annual financial statements and to present them before annual general meeting
- Offence to issue incomplete financial statements and circulars
Part 2
Accounting by Holding Companies
- Obligation to present group statements before annual general meeting
- Group annual financial statements
- Where annual financial statements are to be consolidated
- Where group annual financial statements need not deal with subsidiary
- Accounting periods of company and subsidiary to be the same
- Duty of auditor to report on decisions of directors on group annual financial statements
Part 3
Disclosure of Certain Matters in Financial Statements and Further Requirements
- Disclosure of loans to and security for benefit of directors and managers
- Disclosure of loans made to and security provided for benefit of directors or managers before their appointment
- Disclosure of emoluments and pensions of directors
- Approval and signing of financial statements
- Duty of company to send annual financial statements to members and Registrar
- Report of directors
Part 4
Duties of Auditor as to Annual Financial Statements
- Duties of auditor as to annual financial statements and other matters
- Report of auditor
- Half-yearly interim reports
Part 5
Interim Accounting
- Provisional annual financial statements
- Form and contents of interim report and provisional annual financial statements
- Copies of interim report and provisional annual financial statements to be lodged with Registrar
- Registrar may grant exemptions and extensions of time
- Offences under sections 310 to 313, inclusive
Part 6
Right of Members and Others to Copies of Annual Financial Statements and Interim
Reports
316. Right of members and others to copies of annual financial statements and interim reports
CHAPTER 12
COMPROMISE, ARRANGEMENT AND AMALGAMATION
- Compromise and arrangement between company, its members and creditors
- Information as to compromises and arrangements
- Provisions facilitating reconstruction or amalgamation
- Take-over offers
- Contents of take-over statement by offeror
- Duty of directors of offeree company to furnish take-over statement
- Contents of take-over statement by directors of offeree company
- Statement by the directors of offeree company in case of counter bid
- Requirements for take-over offer may be waived
- Liability and offences in regard to take-over offers
- Power to acquire shares of minority in take-over scheme
CHAPTER 13
EXTERNAL COMPANIES
Part 1
Registration
- Registration of memorandum of external company
- Effect of registration of memorandum of external company
- Power of external company to own immovable property in Namibia
Part 2
Administrative and Other Duties of External Companies
- External company to have auditor
- External company to have person authorised to accept service
- Register of directors and managers and secretaries and power of Registrar to request particulars
- Changes in memorandum of external company
- External company to keep accounting records and lodge annual financial statements and interim report
- External companies to lodge annual return
- Further administrative duties of external company
- Deregistration of external company
- Offences in respect of external companies
- Transfer of undertaking of external company and exemption from transfer duty under scheme
- Registration of external companies as companies in Namibia
CHAPTER 14 WINDING-UP OF COMPANIES Part 1 General 342. Definitions for purposes of winding-up of companies 343. Application of Companies Act, 1926, where winding-up has already commenced 344. Law of insolvency to apply with the necessary changes 345. Voidable and undue preferences 346. Dispositions and share transfers after winding-up void 347. Application of assets and costs of winding-up 348. Modes of winding-up Part 2 Winding-up by Court 349. Circumstances in which company may be wound up by Court 350. When company is deemed unable to pay debts 351. Application for winding-up of company 352. Power of Court in hearing application 353. Commencement of winding-up by Court Part 3 Voluntary Winding-up 354. Circumstances under which company may be wound up voluntarily 355. Voluntary winding-up of members and security 356. Voluntary winding-up of creditors 357. Commencement of voluntary winding-up 358. Effect of voluntary winding-up on status of company and on directors Part 4 General Provisions Affecting all Windings-up 359. Court may stay aside winding-up 360. Notice to creditors or members in review by Court in winding-up 361. Notice of winding-up of company 362. Notice of winding-up to certain officials and their duties 363. Stay of legal proceedings before winding-up order granted 364. Legal proceedings suspended and attachments void 365. Inspection of records of company being wound up 366. Custody of or control over and vesting of property of company 367. Court may order directors and others to deliver property to liquidator or to pay into bank 368. Directors and others to submit statement of affairs 369. Change of address of directors and secretaries to be given to liquidator 370. Master to summon first meetings of creditors and members and purpose 371. Offences in securing nomination as liquidator 372. Restriction on voting at meetings 373. Claims and proof of claims Part 5 Liquidators 374. Appointment of liquidator 375. Appointment of provisional liquidator 376. Determination of person to be appointed liquidator
- Master may decline to appoint nominated person as liquidator
- Remedy of aggrieved persons
- Persons disqualified from appointment as liquidator
- Persons disqualified by Court from being appointed or acting as liquidators
- Master may appoint co-liquidator at any time
- Appointment, commencement of office and validity of acts of liquidator
- Title of liquidator
- Filling of vacancies
- Leave of absence or resignation of liquidator
- Removal of liquidator by Master and by Court
- Control of Master over liquidators
- Plurality of liquidators, liability and disagreement
- Cost and reduction of security by liquidator
- Remuneration of liquidator
- Certificate of completion of duties by liquidator and cancellation of security
Part 6
Powers of Liquidators
- General powers
- Power of liquidator in winding-up by Court
- Court may determine questions in voluntary winding-up
- Exercise of power to make arrangement and the binding of dissentient creditors
- Power of liquidator in voluntary winding-up to accept shares for assets of company
Part 7
Duties of Liquidators
- General duties
- Duty of liquidator to give information to Master
- Duty of liquidator to keep records and inspection of records
- Banking accounts and investments
- Duties of liquidator as to contributories
- Notices to contributories and objections
- Recovery of contributions and nature of liability
- Adjustment of rights of contributories
- Evidence as to contributions and contributories
- Duty of liquidator to expose offences and to report
- Prosecutor-General may make application to Court for disqualification of director
- Duty of liquidator to present report to creditors and contributories
- Duty of liquidator to file liquidation and distribution account
- Master may grant extension of time for lodging account
- Failure of liquidator to lodge account or to perform duties
- Places for and periods of inspection of account
- Objections to account
- Confirmation of account
- Distribution of estate
- Duty of liquidator as to receipts and unpaid dividends
- Payment of money deposited with Master
Part 8
Meetings in Winding-up
- Meetings of creditors and members and voting at meetings of creditors
- Meetings to ascertain wishes of creditors and others
- Duty of directors and officers to attend meetings
- Examinations of directors and others at meetings
- Application of Insolvency Act, 1936
Part 9 Examination of Persons in Winding-up 423. Summoning and examination of persons as to affairs of company 424. Examination by commissioners Part 10 Dissolution of Companies and other Bodies Corporate 425. Dissolution 426. Court may declare dissolution void 427. Registrar to keep register of directors of dissolved companies 428. Disposal of records of dissolved company Part 11 Personal Liability of Delinquent Directors and Others and Offences 429. Delinquent directors and others to restore property and to compensate the company 430. Liability of directors and others for fraudulent conduct of business 431. Application of criminal provisions of the law relating to insolvency 432. Private prosecution of directors and others CHAPTER 15 JUDICIAL MANAGEMENT 433. Circumstances in which company may be placed under judicial management 434. Provisional judicial management order 435. Custody of property and appointment of provisional judicial manager 436. Duties of provisional judicial manager 437. Purpose of meeting convened under section 435(b)(ii) 438. Return day of provisional order of judicial management and powers of Court 439. Duties of final judicial manager 440. Application of assets during judicial management 441. Remuneration of provisional judicial manager or judicial manager 442. Pre-judicial management creditors may consent to preference 443. Voidable and undue preferences in judicial management 444. Period of judicial management to be discounted in determining preference under mortgage bond 445. Position of auditor in judicial management 446. Application to judicial management of certain provisions of winding-up 447. Cancellation of judicial management order CHAPTER 16 TRANSITIONAL AND MISCELLANEOUS PROVISIONS 448. Preservation of rights of existing companies 449. Transitional provisions as to unlimited companies and partly paid up shares 450. Regulations under repealed Act relating to winding up and judicial management CHAPTER 17 REPEAL OF LAWS AND COMMENCEMENT OF ACT 451. Repeal of laws 452. Short title and commencement
SCHEDULES
Schedule 1 Tables A and B Schedule 2 Common Powers of Companies Schedule 3 Matters which must be Stated in a Prospectus in Addition to
those Specified in the Act Schedule 4 Requirements for Annual Financial Statements and Interim Reports Schedule 5 Repeal of Laws
BE IT ENACTED by the Parliament of the Republic of Namibia as follows:
CHAPTER 1
INTERPRETATION AND APPLICATION OF ACT
Definitions
1. (1) In this Act, unless the context otherwise indicates
"accounting records", in relation to a company, includes accounts, deeds, writings and other documents;
"annual duty" means the annual duty referred to in section 182;
"annual return" means the annual return referred to in section 181;
"articles", in relation to a company, means the articles of association of that company for the time being in force, and includes any provision, in so far as it applies in respect of that company, set out in Table A or Table B in Schedule 1;
"auditor" means a person who is, under section 23 of the Public Accountants' and Auditors' Act, 1951 (Act No. 51 of 1951), registered as an accountant and auditor and who has been appointed as an auditor under this Act;
"books or papers" and "books and papers" include accounts, deeds, writings and other documents;
"certified" means certified in the manner prescribed by the Minister to be a true copy or a correct translation;
"close corporation" means a corporation as defined in section 1 of the Close Corporations Act, 1988, (Act No. 26 of 1988);
"Companies Act, 1926," means the Companies Act, 1926 (Act No. 46 of 1926), referred to in section 442 of the repealed Act";
“company” means a company incorporated under Chapter 4 of this Act and includes any body which, immediately before the commencement of this Act, was a company in terms of the repealed Act;
“Court”, in relation to any company or other body corporate, 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;
“debenture” includes debenture stock, debenture bonds and any other securities of a company, whether constituting a charge on the assets of the company or not;
“director” includes any person occupying the position of director or alternate director of a company, by whatever name that person may be designated;
“equity share capital” and “equity shares”, in relation to a company, means its issued share capital and shares, excluding any part which, neither with regard to dividends nor with regard to capital, carries any right to participate beyond a specified amount in a distribution;
“existing company” means any body which, before the commencement of this Act, was a company in terms of the repealed Act;
“external company” means a company or other association of persons, incorporated outside Namibia, which has a place of business in Namibia, or which was an external company in terms of the repealed Act;
“foreign country” means any state, country or territory other than Namibia;
“holding company” means a holding company as defined in subsection (4);
“judicial manager” means the final judicial manager referred to in section 438;
“liquidator”, in relation to a company, means the person appointed under Chapter 14 as liquidator of that company, and includes any co-liquidator and any provisional liquidator so appointed;
“manager”, in relation to a company, means any person who is a principal executive officer of the company for the time being, by whatever name designated and whether or not that person is a director;
“Master” means the Master of the High Court;
“memorandum”, in relation to a company, means the memorandum of association of that company for the time being in force, and in relation to an external company, means the charter, statutes, memorandum of association and articles, or other instrument constituting or defining the constitution of the company;
“Minister”, in relation to any matter to be dealt with in the office of the Master in connection with the winding-up or judicial management of companies, means the Minister responsible for Justice and, in relation to any other matter, means the Minister responsible for Trade and Industry;
“officer”, in relation to a company, includes any managing director, manager or secretary but excludes a secretary which is a body corporate;
“official language” means the official language of Namibia referred to in Article 3 of the Namibian Constitution;
“place of business” means any place where the company transacts or holds itself out as transacting business and includes a share transfer or share registration office;
“prescribed” means prescribed by regulation made under this Act;
“prospectus” means any prospectus, notice, circular, advertisement or other invitation offering any shares of a company to the public;
“provisional judicial manager” means a provisional judicial manager appointed by the Master under section 435;
“Registrar” means the Registrar of Companies appointed under section 6;
“regulations” means the regulations made under this Act;
“SAC” means the Standing Advisory Committee established by section 16;
“secretary” includes any official of a company by whatever name designated, including
a body corporate, performing the duties normally performed by a secretary of a company;
“share”, in relation to a company, means a share in the share capital of that company and
includes stock, and in relation to an offer of shares for subscription or sale, includes a
share and a debenture of a company, whether a company within the meaning of this Act
or not, and any rights or interests, by whatever name called, in a company or in or to that
share or debenture;
“share warrant” means the warrant referred to in section 107(1);
“special resolution”, in relation to a company, means a resolution passed at a general
meeting of that company in the manner provided for by section 207;
“staff member” means a staff member as defined in section 1(1) of the Public Service
Act, 1995 (Act No. 13 of 1995);
“subsidiary company” or “subsidiary” means a subsidiary company as defined in
subsection (3);
“the repealed Act” means the Companies Act, 1973 (Act No. 61 of 1973);
“this Act” includes the regulations;
“wholly owned subsidiary” means a wholly owned subsidiary as defined in subsection
(5); and
“winding-up order” means any order of court whereby a company is wound up and
includes any order of court whereby a company is placed under provisional winding-up
for so long as that order is in force.
- (2)
- A person is not deemed to be, within the meaning of this Act, a person in accordance with whose directions or instructions the directors of a company are accustomed to act by reason only that the directors of the company act on advice given by him or her in a professional capacity.
- (3)
- For the purposes of this Act, a company is deemed to be a subsidiary of another company if
- (a)
- that other company is a member of it and
- (i)
- holds a majority of the voting rights in it; or
- (ii)
- has the right to appoint or remove directors holding a majority of the voting rights at meetings of the board; or
(iii) has the sole control of a majority of the voting rights in it, whether pursuant to an agreement with other members or otherwise; or
- (b)
- it is a subsidiary of any company which is a subsidiary of that other company; or
- (c)
- subsidiaries of that other company or that other company and its subsidiaries together hold the rights referred to in paragraph (a).
- (4)
- In determining whether a company holds the majority of the voting rights as contemplated in subsection (3)(a)(i)
- (a)
- voting rights which are exercisable only in certain circumstances must be taken into account only
- (i)
- when those circumstances have arisen, and for so long as they continue; or
- (ii)
- when those circumstances are under the control of the person holding the voting rights;
- (b)
- voting rights held by a person in a fiduciary capacity must be treated as not held by him or her but by the beneficiary of those voting rights;
- (c)
- voting rights held by a person as nominee for another person must be treated as not held by him or her but by that other person, and voting rights are deemed to be held by a nominee for another person if they are exercisable only on the instructions or with the consent or concurrence of that other person.
- (5)
- A body corporate or other undertaking which would have been a subsidiary of a company had the body corporate or other undertaking been a company is deemed to be a subsidiary of that company.
- (6)
- For the purposes of this Act, a company is deemed to be a holding company of another company if that other company is its subsidiary.
- (7)
- For the purposes of this Act, a subsidiary is deemed to be a wholly owned subsidiary of another company if it has no members except that other company and a wholly owned subsidiary of that other company and its or their nominees.
- (8)
- Where in this Act, reference is made to days within which anything is to be done, Saturdays, Sundays and public holidays must be excluded in calculating the days.
General application of Act
2. This Act applies to every company incorporated under this Act, every external company and, save as is otherwise provided in this Act, to every existing company.
Application of Act restricted
3. This Act does not apply to - (a)
- any company the formation, registration and management of which is governed by any law relating to building societies, friendly societies, including pension funds, within the meaning of the Pension Funds Act, 1956 (Act No. 24 of 1956), trade unions and employers’ organisations, or co-operative societies or companies, save in so far as may be otherwise provided in that law;
- (b)
- any company or external company or society which is subject to any law relating to banks or insurance companies or societies in so far as that law is inconsistent with this Act.
CHAPTER 2
ADMINISTRATION OF ACT
Part 1
Companies Registration Office and Registrar
Companies Registration Office and register
4.
REPUBLIC OF NAMIBIA
N$40.00 WINDHOEK - 30 December 2004 No.3362 CONTENTS Page GOVERNMENT NOTICE No. 288 Promulgation of Companies Act, 2004 (Act No.28 of 2004), of the Parliament .......................................................................................................... 1 _______________ Government Notice
OFFICE OF THE PRIME MINISTER
No. 288 2004
PROMULGATION OF ACT
OF PARLIAMENT
The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 28 of 2004: Companies Act, 2004.
ACT
To provide for the incorporation, management and liquidation of companies; and to provide for incidental matters.
(Signed by the President on 19 December 2004)
ARRANGEMENT OF SECTIONS
Section
CHAPTER 1
INTERPRETATION AND APPLICATION OF ACT
- Definitions
- General application of Act
- Application of Act restricted
CHAPTER 2
ADMINISTRATION OF ACT
Part 1
Companies Registration Office and Registrar
- Companies Registration Office and register
- Seal of Companies Registration Office
- Appointment of Registrar, Deputy Registrar and delegation of power
- Exemption from liability
- Inspection and copies of documents in Companies Registration Office
- Manner of payment of fees to Companies Registration Office
- Annual report by Registrar
Part 2
Powers of Court and Procedure
- Security for costs in legal proceedings by companies and bodies corporate
- Copies of Court orders to be transmitted to Registrar and Master
Part 3
Regulations and Notices
- Regulations
- Prohibition of disclosure of, and exemption from obligation to disclose, certain information
- Notices amending or adding to Schedules
Part 4
Standing Advisory Committee
- Establishment of Standing Advisory Committee
- Functions and powers of SAC
- Tenure of office
- Administration, finance and procedures of SAC
No.3362 Government Gazette 30 December 2004 3 Act No. 28, 2004 COMPANIES ACT, 2004 CHAPTER 3
TYPES AND FORMS OF COMPANIES, CONVERSIONS AND LIMITATIONS
ON PARTNERSHIPS AND ASSOCIATIONS
Part 1
Types of Companies
- Companies having share capital and companies not having share capital
- Non-profit associations
- Meaning of "private company" and cessation of its privileges
- Incorporation of certain branches of foreign companies and non-profit associations
Part 2
Conversion of Companies
24. Conversion of public company, having share capital into private company, and
vice versa - Conversion of company into incorporated non-profit association or company limited by guarantee
- Conversion of company limited by guarantee into company having share capital
- Conversion of unlimited company
- Notice of intended conversion of company
- Contents and form of articles on conversion
- Registration of conversion
- Effect of conversion and alteration of other registers
Part 3
Conversion of Companies and Close Corporations
- Conversion of company into close corporation
- Conversion of close corporation into company
- Effect of conversion of close corporation into company
Part 4
Limitations on Partnerships and Associations for Gain
- Prohibition of associations or partnerships exceeding 20 members and exemption
- Unregistered associations carrying on business for gain not corporate bodies
CHAPTER 4
FORMATION, OBJECTS, CAPACITY, POWERS, NAMES, REGISTRATION
AND INCORPORATION OF COMPANIES, INCIDENTAL MATTERS AND
DEREGISTRATION
Part 1
Formation, Capacity, Powers and Objects
- Mode of forming company
- Capacity, powers and objects
- Ancillary objects and powers of company
- Dealings between company and other persons
- No constructive knowledge
- Power as to pre-incorporation contracts
- Loans made and security provided by subsidiary
- No financial assistance to purchase shares of company or holding company
- Company not to be member of its holding company
- No division into interests, rights to profits or shares in guarantee companies
Part 2
Names of Companies
- Names of companies not to be undesirable
- Reservation of name
- Registration of shortened form of name or defensive name
- Change of name and effect
- Order to change name
- Provisions as to order to change name
- Registrar may call for affidavits and must give reasons for decisions as to names
- Recourse to Court in matters as to names
- Formal requirements as to names of companies
- Use and publication of name by company
- Improper use of word "Limited" or "Incorporated" an offence
- Savings regarding certain existing name registrations
Part 3
Memorandum of Association
- Requirements for memorandum of association
- Memorandum may contain special conditions and provide for unlimited liability of directors
- Form and signing of memorandum
Part 4
Alteration of Memorandum
- Alteration of memorandum as to special conditions and other provisions
- Lodgment of altered memorandum
Part 5
Articles of Association
- Companies to have articles
- Form and signing of articles
- Consolidation of articles
- Alteration of articles
Part 6
Registration, Incorporation and Deregistration
- Registration of memorandum and articles
- Memorandum and articles to be in official language
- Certificate of incorporation and its evidential value
- Effect of incorporation on company and members
- Liability of members where membership reduced below minimum
- Rights of members to copies of memorandum and articles
- Cancellation of registration of memorandum and articles
Part 7
Incidental Matters
- Issued copies of memorandum or articles to embody alterations
- Contracts by companies
- Promissory notes and bills of exchange
- Service of documents on companies
- Arbitration between companies and others
CHAPTER 5
SHARE CAPITAL, ACQUISITION BY COMPANIES OF OWN SHARES,
SHARES, ALLOTMENT AND ISSUE OF SHARES, MEMBERS AND
REGISTER OF MEMBERS, DEBENTURES, TRANSFER AND
RESTRICTIONS ON OFFERING SHARES FOR SALE
Part 1
Share Capital
- Division of share capital into shares having par value or having no par value
- Company may alter share capital and shares
- Premiums received on issue of shares to be share capital, and limitation on application
- Proceeds of issue of shares of no par value to be stated capital
- Effect of conversion of par value share capital into no par value share capital and
vice versa - Payment of interest out of capital in certain cases
- Restriction of power to pay commission and discounts
- Issue of shares of par value at discount
- Issue price of shares of no par value requiring special resolution
Part 2
Acquisition by Companies of own Shares
- Approval of acquisition of own shares by special resolution
- Company to be solvent
- Consequences of acquisition with regard to shares
- Liability of shareholders under certain circumstances
- Procedure of acquisition of certain shares by company
- Enforceability of contracts for acquisition by company of certain shares
- Subsidiaries may acquire certain shares in holding company
- Payments to shareholders
Part 3
Shares and Allotment and Issue
- Nature of shares and payment for shares
- Uncertificated securities
- Register and return as to allotments
- Certificate of shares or stock
- Numbering of shares and share certificates
- Limitation of time for issue of share certificates
- Validation of irregular creation, allotment or issue of shares
- Redeemable preference shares
- Conversion of shares into certain preference shares
- Conversion of shares into stock
- Share warrants to bearer
- Variation of rights in respect of shares
- No offer of shares for sale to public without statement
Part 4
Members and Register of Members
- Members of company
- Trusts in respect of shares
- Register of members
- Index to register of members
- Branch registers in foreign countries
115. Provisions as to branch register 116. Register of members to be evidence 117. Where register of members to be kept 118. Disposal of closed accounts in register 119. Offences in respect of register of members 120. Inspection of register of members 121. Power to close register of members 122. Rectification of register of members Part 5 Debentures 123. Creation and issue of debentures 124. Security for debentures 125. Registration of bonds and annexure to bonds and deeds of pledge 126. Debenture itself may be registered 127. Issue of debentures at different dates and ranking of preference 128. Rights of debenture holders 129. Director or officer not to be trustee for debenture holders 130. Liability of trustee for debenture holders 131. Power to re-issue redeemed debentures in certain cases 132. Debenture to be described as secured or unsecured 133. Form of debentures or debenture certificates 134. Register of pledges and bonds 135. Register of debenture holders 136. Registers may be kept where made up 137. Inspection of registers and copies and extracts 138. Failure to keep registers Part 6 Forgery of Certificates as to Shares, Debentures and other Securities 139. Forgery, impersonation and unlawful engravings Part 7 Transfer of Shares and Debentures 140. Registration of transfer of shares or interests 141. Definitions for purpose of transfer of listed shares or interests 142. Manner in which securities may be transferred 143. Certification by company that security has been lodged for transfer 144. Duty of company with reference to person under contractual disability 145. Warranty and indemnity by persons lodging documents of transfer 146. Notice of refusal to register transfer and limitation of time for issue of certificates on transfer 147. Disclosure of beneficial interest in securities CHAPTER 6 OFFERING OF SHARES AND PROSPECTUS Part 1 Interpretation 148. Definitions for purposes of offering of shares and prospectus Part 2 Offers to Public 149. Restrictions on offers to public
150. Offers not being offers to public 151. No offer for subscription to public without prospectus 152. Approval by stock exchange requirement for letters of allocation 153. Rights offers 154. No offer for sale to public without prospectus 155. Application form for shares to be attached to prospectus Part 3 Prospectus 156. Matters to be stated in prospectus 157. Statement on face of issued prospectus 158. Consent of person named as director 159. Consent by experts and others 160. Contracts and translations thereof to be attached to prospectus 161. Where issue is underwritten 162. Signing, date and date of issue, of prospectus 163. Registration of prospectus 164. Time limit for issue of prospectus 165. Advertisement as to prospectus 166. Waiver of requirements of this Chapter void 167. Variation of contract mentioned in prospectus 168. Liability for untrue statements in prospectus 169. Liability of experts and others 170. Offences in respect of untrue statements in prospectus 171. No diminution of liability under any law or common law Part 4 Allotment and Acceptance after Offer to Public 172. Time limit as to allotment or acceptance 173. No allotment unless minimum subscription received 174. No allotment or acceptance if application form not attached to prospectus 175. Voidable allotment 176. Minimum interval before allotment or acceptance 177. Conditional allotment if prospectus states shares to be listed by stock exchange CHAPTER 7 ADMINISTRATION OF COMPANIES Part 1 General 178. Postal address and registered office of company 179. Names of directors to be stated on certain documents of company 180. Certificate to commence business 181. Annual return 182. Annual duty 183. Annual duty payable by external company 184. Enforcement of duty of company to make returns to Registrar 185. Extension of time 186. Additional fees in respect of late submissions or late payment of annual duty Part 2 Meetings of Company 187. Annual general meeting 188. General meetings
189. Calling of general meetings on requisition by members 190. Convening of general meetings by Registrar 191. General meetings on order of Court 192. Meetings of company with one member 193. Duty of company to circulate notice of resolutions and statements by members 194. Notice of meetings and resolutions 195. Manner of giving notice 196. Representation of company or other body corporate at certain meetings 197. Representation of members at meetings by proxies 198. Quorum for meetings 199. Chairperson of meetings 200. Compulsory adjournment of meetings Part 3 Voting Rights and Voting 201. Voting rights of shareholders 202. Voting rights of preference shareholders 203. Determination of voting rights 204. Exceptions as regards voting rights 205. Exercise of voting rights 206. Right to demand poll Part 4 Special Resolutions 207. Requirements for special resolutions 208. Registration of special resolutions 209. Alteration of memorandum or articles to pass special resolution 210. Special resolution to lapse unless registered 211. Dates on which resolutions take effect Part 5 Minutes, Minute Books and Reports of Meetings 212. Keeping of minutes of meetings 213. Validity of proceedings 214. Right of members to inspect minute books 215. Publication of reports of meetings CHAPTER 8 DIRECTORS Part 1 Number and Appointment 216. Number of directors 217. Determination of number of directors and appointment of first directors 218. Appointment of directors to be voted on individually 219. Consent to act as director or officer 220. Filling of vacancy where director is disqualified or removed 221. Qualification shares of directors 222. Validity of acts where appointment is defective Part 2 Register of Directors and Officers 223. Register of directors, officers and corporate secretaries 224. Duties of directors and others and of company in respect of register
Part 3 Disqualifications of Directors 225. Disqualifications of directors 226. Disqualification of directors, officers and others by Court 227. Register of disqualification orders 228. Removal of directors and procedures in that regard Part 4 Restrictions on Directors, their Powers and Certain Acts 229. Restriction of power of directors to issue share capital 230. Restriction on issue of shares and debentures to directors 231. Share option plans where director is interested 232. Director not to deal in options in respect of listed shares and debentures 233. Prohibition on tax free payments to directors 234. Prohibition of loans to, or security in connection with transactions by, directors and managers 235. Payments to directors for loss of office or in connection with arrangements and take-over schemes 236. Disposal of undertaking or greater part of assets of company Part 5 Interests of and Dealings by Directors and Others in Shares of Company 237. Definitions for purposes of this Part 238. Register of interests of directors and others in shares and debentures of company 239. Directors to determine officers for purpose of register 240. Duty of directors and others as to register of interests 241. Offence to deal in shares with inside information before public announcement Part 6 Interests of Directors and Officers in Contracts 242. Duty of director or officer to disclose interest in contracts 243. Manner of and time for declaration of interest 244. Written resolution where director is interested 245. Disclosure by interested director or officer acting for company 246. When particulars of interest to be stated in notice of meeting 247. Minuting of declarations of interest 248. Register of interests in contracts of directors and officers and its inspection 249. Duty of auditor as to register of interests in contracts Part 7 Proceedings at Meetings of Directors and Managers 250. Keeping of minutes of meetings of directors and managers 251. Validity of proceedings at meetings of directors and managers 252. When resolution at adjourned meetings of directors and managers becomes effective 253. Attendance regis ter of meetings of directors and managers 254. Duty of auditor as to minute books and attendance register Part 8 Indemnity and Relief of, and Offences by, Directors and Others 255. Exemption from indemnity against liability of directors, officers or auditors 256. Relief of directors and others by Court in certain cases 257. False statements and evidence
- Falsification of books and records
- False statement by directors and others
CHAPTER 9
REMEDIES OF MEMBERS AND INVESTIGATIONS
Part 1
Relief from Oppression
260. Remedy of member in case of oppressive or unreasonably prejudicial conduct
Part 2
Inquiry into Membership and Ownership of Shares and Control of Company
- Power of Registrar to request information concerning shares and members
- Appointment and powers of inspectors to investigate financial interest in and control of company
- Power to require information as to interest in shares or debentures
- Power to impose restrictions on shares or debentures
Part 3
Investigation into Affairs of Company
- Inspection of affairs of company on application of members
- Investigation of affairs of company in other cases
- Power of inspector to conduct investigation into affairs of related companies
- Production of documents and evidence on investigation
- Report of inspector
- Proceedings on report of inspector
Part 4
Matters Incidental to Investigations
- Expenses of and incidental to investigation of affairs of company
- Saving in respect of legal practitioners and bankers
- Report of inspectors to be evidence
Part 5
Proceedings on Behalf of Companies
- Initiation of proceedings on behalf of company by member
- Powers of curator
- Security for costs by applicant for appointment of curator
CHAPTER 10
AUDITORS
Part 1
Appointment
- First appointment of auditor of company
- Annual appointment of auditor
- Failure to appoint auditor
- Minister may appoint joint auditor
- Filling of casual vacancies
- Firm may be appointed auditor
- Disqualification for appointment as auditor
- Consent by, and notice, entry and lodging of information pertaining to, auditor
Part 2
Removal and Resignation of Auditor
- Removal of auditor appointed by directors or Registrar, and filling of vacancy
- Removal of auditor and appointment of new auditor
- Special notice for removal of auditor
- Resignation of auditor
Part 3
Rights, Duties and Remuneration
- Right of auditor to access of books and to be heard at general meetings
- Duties of auditor
- Remuneration of auditor
CHAPTER 11
ACCOUNTING AND DISCLOSURE
Part 1
Accounting Records
- Duty of company to keep accounting records
- Determination of financial year of company
- Duty to make out annual financial statements and to present them before annual general meeting
- Offence to issue incomplete financial statements and circulars
Part 2
Accounting by Holding Companies
- Obligation to present group statements before annual general meeting
- Group annual financial statements
- Where annual financial statements are to be consolidated
- Where group annual financial statements need not deal with subsidiary
- Accounting periods of company and subsidiary to be the same
- Duty of auditor to report on decisions of directors on group annual financial statements
Part 3
Disclosure of Certain Matters in Financial Statements and Further Requirements
- Disclosure of loans to and security for benefit of directors and managers
- Disclosure of loans made to and security provided for benefit of directors or managers before their appointment
- Disclosure of emoluments and pensions of directors
- Approval and signing of financial statements
- Duty of company to send annual financial statements to members and Registrar
- Report of directors
Part 4
Duties of Auditor as to Annual Financial Statements
- Duties of auditor as to annual financial statements and other matters
- Report of auditor
- Half-yearly interim reports
Part 5
Interim Accounting
- Provisional annual financial statements
- Form and contents of interim report and provisional annual financial statements
- Copies of interim report and provisional annual financial statements to be lodged with Registrar
- Registrar may grant exemptions and extensions of time
- Offences under sections 310 to 313, inclusive
Part 6
Right of Members and Others to Copies of Annual Financial Statements and Interim
Reports
316. Right of members and others to copies of annual financial statements and interim reports
CHAPTER 12
COMPROMISE, ARRANGEMENT AND AMALGAMATION
- Compromise and arrangement between company, its members and creditors
- Information as to compromises and arrangements
- Provisions facilitating reconstruction or amalgamation
- Take-over offers
- Contents of take-over statement by offeror
- Duty of directors of offeree company to furnish take-over statement
- Contents of take-over statement by directors of offeree company
- Statement by the directors of offeree company in case of counter bid
- Requirements for take-over offer may be waived
- Liability and offences in regard to take-over offers
- Power to acquire shares of minority in take-over scheme
CHAPTER 13
EXTERNAL COMPANIES
Part 1
Registration
- Registration of memorandum of external company
- Effect of registration of memorandum of external company
- Power of external company to own immovable property in Namibia
Part 2
Administrative and Other Duties of External Companies
- External company to have auditor
- External company to have person authorised to accept service
- Register of directors and managers and secretaries and power of Registrar to request particulars
- Changes in memorandum of external company
- External company to keep accounting records and lodge annual financial statements and interim report
- External companies to lodge annual return
- Further administrative duties of external company
- Deregistration of external company
- Offences in respect of external companies
- Transfer of undertaking of external company and exemption from transfer duty under scheme
- Registration of external companies as companies in Namibia
CHAPTER 14 WINDING-UP OF COMPANIES Part 1 General 342. Definitions for purposes of winding-up of companies 343. Application of Companies Act, 1926, where winding-up has already commenced 344. Law of insolvency to apply with the necessary changes 345. Voidable and undue preferences 346. Dispositions and share transfers after winding-up void 347. Application of assets and costs of winding-up 348. Modes of winding-up Part 2 Winding-up by Court 349. Circumstances in which company may be wound up by Court 350. When company is deemed unable to pay debts 351. Application for winding-up of company 352. Power of Court in hearing application 353. Commencement of winding-up by Court Part 3 Voluntary Winding-up 354. Circumstances under which company may be wound up voluntarily 355. Voluntary winding-up of members and security 356. Voluntary winding-up of creditors 357. Commencement of voluntary winding-up 358. Effect of voluntary winding-up on status of company and on directors Part 4 General Provisions Affecting all Windings-up 359. Court may stay aside winding-up 360. Notice to creditors or members in review by Court in winding-up 361. Notice of winding-up of company 362. Notice of winding-up to certain officials and their duties 363. Stay of legal proceedings before winding-up order granted 364. Legal proceedings suspended and attachments void 365. Inspection of records of company being wound up 366. Custody of or control over and vesting of property of company 367. Court may order directors and others to deliver property to liquidator or to pay into bank 368. Directors and others to submit statement of affairs 369. Change of address of directors and secretaries to be given to liquidator 370. Master to summon first meetings of creditors and members and purpose 371. Offences in securing nomination as liquidator 372. Restriction on voting at meetings 373. Claims and proof of claims Part 5 Liquidators 374. Appointment of liquidator 375. Appointment of provisional liquidator 376. Determination of person to be appointed liquidator
- Master may decline to appoint nominated person as liquidator
- Remedy of aggrieved persons
- Persons disqualified from appointment as liquidator
- Persons disqualified by Court from being appointed or acting as liquidators
- Master may appoint co-liquidator at any time
- Appointment, commencement of office and validity of acts of liquidator
- Title of liquidator
- Filling of vacancies
- Leave of absence or resignation of liquidator
- Removal of liquidator by Master and by Court
- Control of Master over liquidators
- Plurality of liquidators, liability and disagreement
- Cost and reduction of security by liquidator
- Remuneration of liquidator
- Certificate of completion of duties by liquidator and cancellation of security
Part 6
Powers of Liquidators
- General powers
- Power of liquidator in winding-up by Court
- Court may determine questions in voluntary winding-up
- Exercise of power to make arrangement and the binding of dissentient creditors
- Power of liquidator in voluntary winding-up to accept shares for assets of company
Part 7
Duties of Liquidators
- General duties
- Duty of liquidator to give information to Master
- Duty of liquidator to keep records and inspection of records
- Banking accounts and investments
- Duties of liquidator as to contributories
- Notices to contributories and objections
- Recovery of contributions and nature of liability
- Adjustment of rights of contributories
- Evidence as to contributions and contributories
- Duty of liquidator to expose offences and to report
- Prosecutor-General may make application to Court for disqualification of director
- Duty of liquidator to present report to creditors and contributories
- Duty of liquidator to file liquidation and distribution account
- Master may grant extension of time for lodging account
- Failure of liquidator to lodge account or to perform duties
- Places for and periods of inspection of account
- Objections to account
- Confirmation of account
- Distribution of estate
- Duty of liquidator as to receipts and unpaid dividends
- Payment of money deposited with Master
Part 8
Meetings in Winding-up
- Meetings of creditors and members and voting at meetings of creditors
- Meetings to ascertain wishes of creditors and others
- Duty of directors and officers to attend meetings
- Examinations of directors and others at meetings
- Application of Insolvency Act, 1936
Part 9 Examination of Persons in Winding-up 423. Summoning and examination of persons as to affairs of company 424. Examination by commissioners Part 10 Dissolution of Companies and other Bodies Corporate 425. Dissolution 426. Court may declare dissolution void 427. Registrar to keep register of directors of dissolved companies 428. Disposal of records of dissolved company Part 11 Personal Liability of Delinquent Directors and Others and Offences 429. Delinquent directors and others to restore property and to compensate the company 430. Liability of directors and others for fraudulent conduct of business 431. Application of criminal provisions of the law relating to insolvency 432. Private prosecution of directors and others CHAPTER 15 JUDICIAL MANAGEMENT 433. Circumstances in which company may be placed under judicial management 434. Provisional judicial management order 435. Custody of property and appointment of provisional judicial manager 436. Duties of provisional judicial manager 437. Purpose of meeting convened under section 435(b)(ii) 438. Return day of provisional order of judicial management and powers of Court 439. Duties of final judicial manager 440. Application of assets during judicial management 441. Remuneration of provisional judicial manager or judicial manager 442. Pre-judicial management creditors may consent to preference 443. Voidable and undue preferences in judicial management 444. Period of judicial management to be discounted in determining preference under mortgage bond 445. Position of auditor in judicial management 446. Application to judicial management of certain provisions of winding-up 447. Cancellation of judicial management order CHAPTER 16 TRANSITIONAL AND MISCELLANEOUS PROVISIONS 448. Preservation of rights of existing companies 449. Transitional provisions as to unlimited companies and partly paid up shares 450. Regulations under repealed Act relating to winding up and judicial management CHAPTER 17 REPEAL OF LAWS AND COMMENCEMENT OF ACT 451. Repeal of laws 452. Short title and commencement
SCHEDULES
Schedule 1 Tables A and B Schedule 2 Common Powers of Companies Schedule 3 Matters which must be Stated in a Prospectus in Addition to
those Specified in the Act Schedule 4 Requirements for Annual Financial Statements and Interim Reports Schedule 5 Repeal of Laws
BE IT ENACTED by the Parliament of the Republic of Namibia as follows:
CHAPTER 1
INTERPRETATION AND APPLICATION OF ACT
Definitions
1. (1) In this Act, unless the context otherwise indicates
"accounting records", in relation to a company, includes accounts, deeds, writings and other documents;
"annual duty" means the annual duty referred to in section 182;
"annual return" means the annual return referred to in section 181;
"articles", in relation to a company, means the articles of association of that company for the time being in force, and includes any provision, in so far as it applies in respect of that company, set out in Table A or Table B in Schedule 1;
"auditor" means a person who is, under section 23 of the Public Accountants' and Auditors' Act, 1951 (Act No. 51 of 1951), registered as an accountant and auditor and who has been appointed as an auditor under this Act;
"books or papers" and "books and papers" include accounts, deeds, writings and other documents;
"certified" means certified in the manner prescribed by the Minister to be a true copy or a correct translation;
"close corporation" means a corporation as defined in section 1 of the Close Corporations Act, 1988, (Act No. 26 of 1988);
"Companies Act, 1926," means the Companies Act, 1926 (Act No. 46 of 1926), referred to in section 442 of the repealed Act";
“company” means a company incorporated under Chapter 4 of this Act and includes any body which, immediately before the commencement of this Act, was a company in terms of the repealed Act;
“Court”, in relation to any company or other body corporate, 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;
“debenture” includes debenture stock, debenture bonds and any other securities of a company, whether constituting a charge on the assets of the company or not;
“director” includes any person occupying the position of director or alternate director of a company, by whatever name that person may be designated;
“equity share capital” and “equity shares”, in relation to a company, means its issued share capital and shares, excluding any part which, neither with regard to dividends nor with regard to capital, carries any right to participate beyond a specified amount in a distribution;
“existing company” means any body which, before the commencement of this Act, was a company in terms of the repealed Act;
“external company” means a company or other association of persons, incorporated outside Namibia, which has a place of business in Namibia, or which was an external company in terms of the repealed Act;
“foreign country” means any state, country or territory other than Namibia;
“holding company” means a holding company as defined in subsection (4);
“judicial manager” means the final judicial manager referred to in section 438;
“liquidator”, in relation to a company, means the person appointed under Chapter 14 as liquidator of that company, and includes any co-liquidator and any provisional liquidator so appointed;
“manager”, in relation to a company, means any person who is a principal executive officer of the company for the time being, by whatever name designated and whether or not that person is a director;
“Master” means the Master of the High Court;
“memorandum”, in relation to a company, means the memorandum of association of that company for the time being in force, and in relation to an external company, means the charter, statutes, memorandum of association and articles, or other instrument constituting or defining the constitution of the company;
“Minister”, in relation to any matter to be dealt with in the office of the Master in connection with the winding-up or judicial management of companies, means the Minister responsible for Justice and, in relation to any other matter, means the Minister responsible for Trade and Industry;
“officer”, in relation to a company, includes any managing director, manager or secretary but excludes a secretary which is a body corporate;
“official language” means the official language of Namibia referred to in Article 3 of the Namibian Constitution;
“place of business” means any place where the company transacts or holds itself out as transacting business and includes a share transfer or share registration office;
“prescribed” means prescribed by regulation made under this Act;
“prospectus” means any prospectus, notice, circular, advertisement or other invitation offering any shares of a company to the public;
“provisional judicial manager” means a provisional judicial manager appointed by the Master under section 435;
“Registrar” means the Registrar of Companies appointed under section 6;
“regulations” means the regulations made under this Act;
“SAC” means the Standing Advisory Committee established by section 16;
“secretary” includes any official of a company by whatever name designated, including
a body corporate, performing the duties normally performed by a secretary of a company;
“share”, in relation to a company, means a share in the share capital of that company and
includes stock, and in relation to an offer of shares for subscription or sale, includes a
share and a debenture of a company, whether a company within the meaning of this Act
or not, and any rights or interests, by whatever name called, in a company or in or to that
share or debenture;
“share warrant” means the warrant referred to in section 107(1);
“special resolution”, in relation to a company, means a resolution passed at a general
meeting of that company in the manner provided for by section 207;
“staff member” means a staff member as defined in section 1(1) of the Public Service
Act, 1995 (Act No. 13 of 1995);
“subsidiary company” or “subsidiary” means a subsidiary company as defined in
subsection (3);
“the repealed Act” means the Companies Act, 1973 (Act No. 61 of 1973);
“this Act” includes the regulations;
“wholly owned subsidiary” means a wholly owned subsidiary as defined in subsection
(5); and
“winding-up order” means any order of court whereby a company is wound up and
includes any order of court whereby a company is placed under provisional winding-up
for so long as that order is in force.
- (2)
- A person is not deemed to be, within the meaning of this Act, a person in accordance with whose directions or instructions the directors of a company are accustomed to act by reason only that the directors of the company act on advice given by him or her in a professional capacity.
- (3)
- For the purposes of this Act, a company is deemed to be a subsidiary of another company if
- (a)
- that other company is a member of it and
- (i)
- holds a majority of the voting rights in it; or
- (ii)
- has the right to appoint or remove directors holding a majority of the voting rights at meetings of the board; or
(iii) has the sole control of a majority of the voting rights in it, whether pursuant to an agreement with other members or otherwise; or
- (b)
- it is a subsidiary of any company which is a subsidiary of that other company; or
- (c)
- subsidiaries of that other company or that other company and its subsidiaries together hold the rights referred to in paragraph (a).
- (4)
- In determining whether a company holds the majority of the voting rights as contemplated in subsection (3)(a)(i)
- (a)
- voting rights which are exercisable only in certain circumstances must be taken into account only
- (i)
- when those circumstances have arisen, and for so long as they continue; or
- (ii)
- when those circumstances are under the control of the person holding the voting rights;
- (b)
- voting rights held by a person in a fiduciary capacity must be treated as not held by him or her but by the beneficiary of those voting rights;
- (c)
- voting rights held by a person as nominee for another person must be treated as not held by him or her but by that other person, and voting rights are deemed to be held by a nominee for another person if they are exercisable only on the instructions or with the consent or concurrence of that other person.
- (5)
- A body corporate or other undertaking which would have been a subsidiary of a company had the body corporate or other undertaking been a company is deemed to be a subsidiary of that company.
- (6)
- For the purposes of this Act, a company is deemed to be a holding company of another company if that other company is its subsidiary.
- (7)
- For the purposes of this Act, a subsidiary is deemed to be a wholly owned subsidiary of another company if it has no members except that other company and a wholly owned subsidiary of that other company and its or their nominees.
- (8)
- Where in this Act, reference is made to days within which anything is to be done, Saturdays, Sundays and public holidays must be excluded in calculating the days.
General application of Act
2. This Act applies to every company incorporated under this Act, every external company and, save as is otherwise provided in this Act, to every existing company.
Application of Act restricted
3. This Act does not apply to - (a)
- any company the formation, registration and management of which is governed by any law relating to building societies, friendly societies, including pension funds, within the meaning of the Pension Funds Act, 1956 (Act No. 24 of 1956), trade unions and employers’ organisations, or co-operative societies or companies, save in so far as may be otherwise provided in that law;
- (b)
- any company or external company or society which is subject to any law relating to banks or insurance companies or societies in so far as that law is inconsistent with this Act.
CHAPTER 2
ADMINISTRATION OF ACT
Part 1
Companies Registration Office and Registrar
Companies Registration Office and register
4.
CONTENTS |
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Page |
GOVERNMENT NOTICE |
No. 288 Promulgation of Companies Act, 2004 (Act No.28 of 2004), of the Parliament .......................................................................................................... 1 |
_______________ |
Government Notice |
OFFICE OF THE PRIME MINISTER
No. 288 2004
PROMULGATION OF ACT The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 28 of 2004: Companies Act, 2004.
ACT (Signed by the President on 19 December 2004)
ARRANGEMENT OF SECTIONS
Section
CHAPTER 2 Part 1 Part 2 Part 3 Part 4 TYPES AND FORMS OF COMPANIES, CONVERSIONS AND LIMITATIONS ON PARTNERSHIPS AND ASSOCIATIONS
Part 1 Part 2 24. Conversion of public company, having share capital into private company, and
vice versa Part 3 Part 4 CHAPTER 4 Part 1 Part 2 Part 3 Part 4 Part 5 Part 6 Part 7 CHAPTER 5 SHARES, ALLOTMENT AND ISSUE OF SHARES, MEMBERS AND Part 1 vice versa Part 2 Part 3 Part 4 CHAPTER 9 Part 1 260. Remedy of member in case of oppressive or unreasonably prejudicial conduct
Part 2 Part 3 Part 4 Part 5 CHAPTER 10 Part 1 Part 2 Part 3 CHAPTER 11 Part 1 Part 2 Part 3 Part 4 Part 5 Part 6 316. Right of members and others to copies of annual financial statements and interim reports
CHAPTER 12 CHAPTER 13 Part 1 Part 2 Part 6 Part 7 Part 8 Schedule 1 Tables A and B Schedule 2 Common Powers of Companies Schedule 3 Matters which must be Stated in a Prospectus in Addition to
those Specified in the Act Schedule 4 Requirements for Annual Financial Statements and Interim Reports Schedule 5 Repeal of Laws
BE IT ENACTED by the Parliament of the Republic of Namibia as follows:
Definitions
1. (1) In this Act, unless the context otherwise indicates
"accounting records", in relation to a company, includes accounts, deeds, writings and other documents;
"annual duty" means the annual duty referred to in section 182;
"annual return" means the annual return referred to in section 181;
"articles", in relation to a company, means the articles of association of that company for the time being in force, and includes any provision, in so far as it applies in respect of that company, set out in Table A or Table B in Schedule 1;
"auditor" means a person who is, under section 23 of the Public Accountants' and Auditors' Act, 1951 (Act No. 51 of 1951), registered as an accountant and auditor and who has been appointed as an auditor under this Act;
"books or papers" and "books and papers" include accounts, deeds, writings and other documents;
"certified" means certified in the manner prescribed by the Minister to be a true copy or a correct translation;
"close corporation" means a corporation as defined in section 1 of the Close Corporations Act, 1988, (Act No. 26 of 1988);
"Companies Act, 1926," means the Companies Act, 1926 (Act No. 46 of 1926), referred to in section 442 of the repealed Act";
“company” means a company incorporated under Chapter 4 of this Act and includes any body which, immediately before the commencement of this Act, was a company in terms of the repealed Act;
“Court”, in relation to any company or other body corporate, 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;
“debenture” includes debenture stock, debenture bonds and any other securities of a company, whether constituting a charge on the assets of the company or not;
“director” includes any person occupying the position of director or alternate director of a company, by whatever name that person may be designated;
“equity share capital” and “equity shares”, in relation to a company, means its issued share capital and shares, excluding any part which, neither with regard to dividends nor with regard to capital, carries any right to participate beyond a specified amount in a distribution;
“existing company” means any body which, before the commencement of this Act, was a company in terms of the repealed Act;
“external company” means a company or other association of persons, incorporated outside Namibia, which has a place of business in Namibia, or which was an external company in terms of the repealed Act;
“foreign country” means any state, country or territory other than Namibia;
“holding company” means a holding company as defined in subsection (4);
“judicial manager” means the final judicial manager referred to in section 438;
“liquidator”, in relation to a company, means the person appointed under Chapter 14 as liquidator of that company, and includes any co-liquidator and any provisional liquidator so appointed;
“manager”, in relation to a company, means any person who is a principal executive officer of the company for the time being, by whatever name designated and whether or not that person is a director;
“Master” means the Master of the High Court;
“memorandum”, in relation to a company, means the memorandum of association of that company for the time being in force, and in relation to an external company, means the charter, statutes, memorandum of association and articles, or other instrument constituting or defining the constitution of the company;
“Minister”, in relation to any matter to be dealt with in the office of the Master in connection with the winding-up or judicial management of companies, means the Minister responsible for Justice and, in relation to any other matter, means the Minister responsible for Trade and Industry;
“officer”, in relation to a company, includes any managing director, manager or secretary but excludes a secretary which is a body corporate;
“official language” means the official language of Namibia referred to in Article 3 of the Namibian Constitution;
“place of business” means any place where the company transacts or holds itself out as transacting business and includes a share transfer or share registration office;
“prescribed” means prescribed by regulation made under this Act;
“prospectus” means any prospectus, notice, circular, advertisement or other invitation offering any shares of a company to the public;
“provisional judicial manager” means a provisional judicial manager appointed by the Master under section 435;
“Registrar” means the Registrar of Companies appointed under section 6; a body corporate, performing the duties normally performed by a secretary of a company; or not, and any rights or interests, by whatever name called, in a company or in or to that meeting of that company in the manner provided for by section 207; “staff member” means a staff member as defined in section 1(1) of the Public Service subsection (3); (5); and 2. This Act applies to every company incorporated under this Act, every external company and, save as is otherwise provided in this Act, to every existing company.
3. This Act does not apply to CHAPTER 2 Part 1 4.
OF PARLIAMENT
To provide for the incorporation, management and liquidation of companies; and to provide for incidental matters.
CHAPTER 1
INTERPRETATION AND APPLICATION OF ACT
ADMINISTRATION OF ACT
Companies Registration Office and Registrar
Powers of Court and Procedure
Regulations and Notices
Standing Advisory Committee
No.3362 Government Gazette 30 December 2004 3 Act No. 28, 2004 COMPANIES ACT, 2004 CHAPTER 3
Types of Companies
Conversion of Companies
Conversion of Companies and Close Corporations
Limitations on Partnerships and Associations for Gain
FORMATION, OBJECTS, CAPACITY, POWERS, NAMES, REGISTRATION
AND INCORPORATION OF COMPANIES, INCIDENTAL MATTERS AND
DEREGISTRATION
Formation, Capacity, Powers and Objects
Names of Companies
Memorandum of Association
Alteration of Memorandum
Articles of Association
Registration, Incorporation and Deregistration
Incidental Matters
SHARE CAPITAL, ACQUISITION BY COMPANIES OF OWN SHARES,
REGISTER OF MEMBERS, DEBENTURES, TRANSFER AND
RESTRICTIONS ON OFFERING SHARES FOR SALE
Share Capital
Acquisition by Companies of own Shares
Shares and Allotment and Issue
Members and Register of Members
115. Provisions as to branch register 116. Register of members to be evidence 117. Where register of members to be kept 118. Disposal of closed accounts in register 119. Offences in respect of register of members 120. Inspection of register of members 121. Power to close register of members 122. Rectification of register of members Part 5 Debentures 123. Creation and issue of debentures 124. Security for debentures 125. Registration of bonds and annexure to bonds and deeds of pledge 126. Debenture itself may be registered 127. Issue of debentures at different dates and ranking of preference 128. Rights of debenture holders 129. Director or officer not to be trustee for debenture holders 130. Liability of trustee for debenture holders 131. Power to re-issue redeemed debentures in certain cases 132. Debenture to be described as secured or unsecured 133. Form of debentures or debenture certificates 134. Register of pledges and bonds 135. Register of debenture holders 136. Registers may be kept where made up 137. Inspection of registers and copies and extracts 138. Failure to keep registers Part 6 Forgery of Certificates as to Shares, Debentures and other Securities 139. Forgery, impersonation and unlawful engravings Part 7 Transfer of Shares and Debentures 140. Registration of transfer of shares or interests 141. Definitions for purpose of transfer of listed shares or interests 142. Manner in which securities may be transferred 143. Certification by company that security has been lodged for transfer 144. Duty of company with reference to person under contractual disability 145. Warranty and indemnity by persons lodging documents of transfer 146. Notice of refusal to register transfer and limitation of time for issue of certificates on transfer 147. Disclosure of beneficial interest in securities CHAPTER 6 OFFERING OF SHARES AND PROSPECTUS Part 1 Interpretation 148. Definitions for purposes of offering of shares and prospectus Part 2 Offers to Public 149. Restrictions on offers to public
150. Offers not being offers to public 151. No offer for subscription to public without prospectus 152. Approval by stock exchange requirement for letters of allocation 153. Rights offers 154. No offer for sale to public without prospectus 155. Application form for shares to be attached to prospectus Part 3 Prospectus 156. Matters to be stated in prospectus 157. Statement on face of issued prospectus 158. Consent of person named as director 159. Consent by experts and others 160. Contracts and translations thereof to be attached to prospectus 161. Where issue is underwritten 162. Signing, date and date of issue, of prospectus 163. Registration of prospectus 164. Time limit for issue of prospectus 165. Advertisement as to prospectus 166. Waiver of requirements of this Chapter void 167. Variation of contract mentioned in prospectus 168. Liability for untrue statements in prospectus 169. Liability of experts and others 170. Offences in respect of untrue statements in prospectus 171. No diminution of liability under any law or common law Part 4 Allotment and Acceptance after Offer to Public 172. Time limit as to allotment or acceptance 173. No allotment unless minimum subscription received 174. No allotment or acceptance if application form not attached to prospectus 175. Voidable allotment 176. Minimum interval before allotment or acceptance 177. Conditional allotment if prospectus states shares to be listed by stock exchange CHAPTER 7 ADMINISTRATION OF COMPANIES Part 1 General 178. Postal address and registered office of company 179. Names of directors to be stated on certain documents of company 180. Certificate to commence business 181. Annual return 182. Annual duty 183. Annual duty payable by external company 184. Enforcement of duty of company to make returns to Registrar 185. Extension of time 186. Additional fees in respect of late submissions or late payment of annual duty Part 2 Meetings of Company 187. Annual general meeting 188. General meetings
189. Calling of general meetings on requisition by members 190. Convening of general meetings by Registrar 191. General meetings on order of Court 192. Meetings of company with one member 193. Duty of company to circulate notice of resolutions and statements by members 194. Notice of meetings and resolutions 195. Manner of giving notice 196. Representation of company or other body corporate at certain meetings 197. Representation of members at meetings by proxies 198. Quorum for meetings 199. Chairperson of meetings 200. Compulsory adjournment of meetings Part 3 Voting Rights and Voting 201. Voting rights of shareholders 202. Voting rights of preference shareholders 203. Determination of voting rights 204. Exceptions as regards voting rights 205. Exercise of voting rights 206. Right to demand poll Part 4 Special Resolutions 207. Requirements for special resolutions 208. Registration of special resolutions 209. Alteration of memorandum or articles to pass special resolution 210. Special resolution to lapse unless registered 211. Dates on which resolutions take effect Part 5 Minutes, Minute Books and Reports of Meetings 212. Keeping of minutes of meetings 213. Validity of proceedings 214. Right of members to inspect minute books 215. Publication of reports of meetings CHAPTER 8 DIRECTORS Part 1 Number and Appointment 216. Number of directors 217. Determination of number of directors and appointment of first directors 218. Appointment of directors to be voted on individually 219. Consent to act as director or officer 220. Filling of vacancy where director is disqualified or removed 221. Qualification shares of directors 222. Validity of acts where appointment is defective Part 2 Register of Directors and Officers 223. Register of directors, officers and corporate secretaries 224. Duties of directors and others and of company in respect of register
Part 3 Disqualifications of Directors 225. Disqualifications of directors 226. Disqualification of directors, officers and others by Court 227. Register of disqualification orders 228. Removal of directors and procedures in that regard Part 4 Restrictions on Directors, their Powers and Certain Acts 229. Restriction of power of directors to issue share capital 230. Restriction on issue of shares and debentures to directors 231. Share option plans where director is interested 232. Director not to deal in options in respect of listed shares and debentures 233. Prohibition on tax free payments to directors 234. Prohibition of loans to, or security in connection with transactions by, directors and managers 235. Payments to directors for loss of office or in connection with arrangements and take-over schemes 236. Disposal of undertaking or greater part of assets of company Part 5 Interests of and Dealings by Directors and Others in Shares of Company 237. Definitions for purposes of this Part 238. Register of interests of directors and others in shares and debentures of company 239. Directors to determine officers for purpose of register 240. Duty of directors and others as to register of interests 241. Offence to deal in shares with inside information before public announcement Part 6 Interests of Directors and Officers in Contracts 242. Duty of director or officer to disclose interest in contracts 243. Manner of and time for declaration of interest 244. Written resolution where director is interested 245. Disclosure by interested director or officer acting for company 246. When particulars of interest to be stated in notice of meeting 247. Minuting of declarations of interest 248. Register of interests in contracts of directors and officers and its inspection 249. Duty of auditor as to register of interests in contracts Part 7 Proceedings at Meetings of Directors and Managers 250. Keeping of minutes of meetings of directors and managers 251. Validity of proceedings at meetings of directors and managers 252. When resolution at adjourned meetings of directors and managers becomes effective 253. Attendance regis ter of meetings of directors and managers 254. Duty of auditor as to minute books and attendance register Part 8 Indemnity and Relief of, and Offences by, Directors and Others 255. Exemption from indemnity against liability of directors, officers or auditors 256. Relief of directors and others by Court in certain cases 257. False statements and evidence
REMEDIES OF MEMBERS AND INVESTIGATIONS
Relief from Oppression
Inquiry into Membership and Ownership of Shares and Control of Company
Investigation into Affairs of Company
Matters Incidental to Investigations
Proceedings on Behalf of Companies
AUDITORS
Appointment
Removal and Resignation of Auditor
Rights, Duties and Remuneration
ACCOUNTING AND DISCLOSURE
Accounting Records
Accounting by Holding Companies
Disclosure of Certain Matters in Financial Statements and Further Requirements
Duties of Auditor as to Annual Financial Statements
Interim Accounting
Right of Members and Others to Copies of Annual Financial Statements and Interim
Reports
COMPROMISE, ARRANGEMENT AND AMALGAMATION
EXTERNAL COMPANIES
Registration
Administrative and Other Duties of External Companies
CHAPTER 14 WINDING-UP OF COMPANIES Part 1 General 342. Definitions for purposes of winding-up of companies 343. Application of Companies Act, 1926, where winding-up has already commenced 344. Law of insolvency to apply with the necessary changes 345. Voidable and undue preferences 346. Dispositions and share transfers after winding-up void 347. Application of assets and costs of winding-up 348. Modes of winding-up Part 2 Winding-up by Court 349. Circumstances in which company may be wound up by Court 350. When company is deemed unable to pay debts 351. Application for winding-up of company 352. Power of Court in hearing application 353. Commencement of winding-up by Court Part 3 Voluntary Winding-up 354. Circumstances under which company may be wound up voluntarily 355. Voluntary winding-up of members and security 356. Voluntary winding-up of creditors 357. Commencement of voluntary winding-up 358. Effect of voluntary winding-up on status of company and on directors Part 4 General Provisions Affecting all Windings-up 359. Court may stay aside winding-up 360. Notice to creditors or members in review by Court in winding-up 361. Notice of winding-up of company 362. Notice of winding-up to certain officials and their duties 363. Stay of legal proceedings before winding-up order granted 364. Legal proceedings suspended and attachments void 365. Inspection of records of company being wound up 366. Custody of or control over and vesting of property of company 367. Court may order directors and others to deliver property to liquidator or to pay into bank 368. Directors and others to submit statement of affairs 369. Change of address of directors and secretaries to be given to liquidator 370. Master to summon first meetings of creditors and members and purpose 371. Offences in securing nomination as liquidator 372. Restriction on voting at meetings 373. Claims and proof of claims Part 5 Liquidators 374. Appointment of liquidator 375. Appointment of provisional liquidator 376. Determination of person to be appointed liquidator
Powers of Liquidators
Duties of Liquidators
Meetings in Winding-up
Part 9 Examination of Persons in Winding-up 423. Summoning and examination of persons as to affairs of company 424. Examination by commissioners Part 10 Dissolution of Companies and other Bodies Corporate 425. Dissolution 426. Court may declare dissolution void 427. Registrar to keep register of directors of dissolved companies 428. Disposal of records of dissolved company Part 11 Personal Liability of Delinquent Directors and Others and Offences 429. Delinquent directors and others to restore property and to compensate the company 430. Liability of directors and others for fraudulent conduct of business 431. Application of criminal provisions of the law relating to insolvency 432. Private prosecution of directors and others CHAPTER 15 JUDICIAL MANAGEMENT 433. Circumstances in which company may be placed under judicial management 434. Provisional judicial management order 435. Custody of property and appointment of provisional judicial manager 436. Duties of provisional judicial manager 437. Purpose of meeting convened under section 435(b)(ii) 438. Return day of provisional order of judicial management and powers of Court 439. Duties of final judicial manager 440. Application of assets during judicial management 441. Remuneration of provisional judicial manager or judicial manager 442. Pre-judicial management creditors may consent to preference 443. Voidable and undue preferences in judicial management 444. Period of judicial management to be discounted in determining preference under mortgage bond 445. Position of auditor in judicial management 446. Application to judicial management of certain provisions of winding-up 447. Cancellation of judicial management order CHAPTER 16 TRANSITIONAL AND MISCELLANEOUS PROVISIONS 448. Preservation of rights of existing companies 449. Transitional provisions as to unlimited companies and partly paid up shares 450. Regulations under repealed Act relating to winding up and judicial management CHAPTER 17 REPEAL OF LAWS AND COMMENCEMENT OF ACT 451. Repeal of laws 452. Short title and commencement SCHEDULES
CHAPTER 1
INTERPRETATION AND APPLICATION OF ACT
“regulations” means the regulations made under this Act;
“SAC” means the Standing Advisory Committee established by section 16;
“secretary” includes any official of a company by whatever name designated, including
“share”, in relation to a company, means a share in the share capital of that company and
includes stock, and in relation to an offer of shares for subscription or sale, includes a
share and a debenture of a company, whether a company within the meaning of this Act
share or debenture;
“share warrant” means the warrant referred to in section 107(1);
“special resolution”, in relation to a company, means a resolution passed at a general
Act, 1995 (Act No. 13 of 1995);
“subsidiary company” or “subsidiary” means a subsidiary company as defined in
“the repealed Act” means the Companies Act, 1973 (Act No. 61 of 1973);
“this Act” includes the regulations;
“wholly owned subsidiary” means a wholly owned subsidiary as defined in subsection
“winding-up order” means any order of court whereby a company is wound up and
includes any order of court whereby a company is placed under provisional winding-up
for so long as that order is in force.
(iii) has the sole control of a majority of the voting rights in it, whether pursuant to an agreement with other members or otherwise; or
General application of Act
Application of Act restricted
ADMINISTRATION OF ACT
Companies Registration Office and Registrar
Companies Registration Office and register