ACTTo provide for the incorporation, management and liquidation of companies; and to provide for incidental matters.BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:-
Chapter 1
INTERPRETATION AND APPLICATION OF ACT
1. Definitions
(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;“BIPA” means the Business and Intellectual Property Authority established by section 3 of BIPA Act;“BIPA Act” means the Business and Intellectual Property Authority Act, 2016 (Act No. 8 of 2016);“Board” means the Board of BIPA constituted under section 8 of BIPA Act;“books or papers” and “books and papers” include accounts, deeds, writings and other documents;“certified” means certified in the manner prescribed by the Board 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of 1988);“Companies Act, 1926,” means the Companies Act, 1926 (Act No. 46 of 1926), referred to in section 442 of the repealed Act”;“company” means a company incorporated under Chapter 4 of this Act and includes any body which, immediately before the commencement of this Act, was a company in terms of the repealed Act;“Court”, in relation to any company or other body corporate, means the High Court and, in relation to any offence under this Act, includes a magistrate’s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 business and industrial property as defined in section 1 of BIPA Act;“Registration Office” means the Registration Office as defined in section 1 of BIPA 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 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.2. General application of Act
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. Application of Act restricted
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 – Registration Office and Registrar
4. Registration Office and register
(1)For the purposes of this Act, the companies are registered at the Registration Office.(2)Notwithstanding subsection (1), the Board may by notice in the Gazette, declare any other place to be a Registration Office for the purposes of this Act.(3)The Registrar must, in the Registration Office, keep a register of companies in which must be recorded the registration of any company and any other matter for which provision is made in this Act.(4)The register of companies kept by the Registrar under the repealed Act is deemed to be and to form part of the register of companies to be kept in the Registration Office.5. Seal of the Registration Office
There is a seal of the Registration Office and the impression of that seal must be judicially noticed in evidence.
6. Appointment of Registrar, Deputy Registrar and delegation of power
(4)The Registrar may in writing delegate any of the powers and entrust any of the duties assigned to him or her by this Act, to any staff member, except for the powers and duties entrusted or assigned to him or her by section 10 and, in so far as they relate to giving notice in the Gazette, sections 30(3), 33(6), 49(5), 50(3)(b)(iii), 74(2) and (3), 98, 149(2) and 425(2).7. Exemption from liability
(1)No act or omission by the Registrar or any staff member or other person in the employment of the State, having duties to perform under this Act, subjects the State, or the Registrar, or that staff member or person to any liability for any loss or damage sustained by any person in consequence of that act or omission unless that act or omission was done in bad faith or was due to a lack of reasonable care or diligence.(2)An auditor, a liquidator, a judicial manager or a provisional judicial manager is not liable in respect of any opinion expressed or certificate given or report or statement made or statement, account or document certified by him or her in good faith in the ordinary course of his or her duties under this Act, unless it is proved that that opinion was expressed or that certificate was given or that report or statement was made or that statement, account or document was certified maliciously or negligently.8. Inspection and copies of documents in Registration Office
(1)Subject to subsection (4), any person may, on payment of the prescribed fee -
(a)inspect the documents lodged under this Act with the Registrar;(b)obtain a certificate from the Registrar as to the contents or part of the contents of any document kept by him or her under this Act in respect of any company and which is open to inspection; or(c)obtain a copy of or extract from that document.(2)If the Registrar is satisfied -
(a)that an inspection, certificate, copy or extract is required on behalf of any foreign government; and(b)that no fees are payable in the foreign country concerned in respect of that inspection, certificate, copy or extract required on behalf of the Government of Namibia;no fee referred to in subsection (1) is payable.
(3)If the Registrar is satisfied that any inspection, certificate, copy or extract is required for purposes of research by or under the control of an institution for higher education, the Registrar may permit that inspection, or furnish that certificate or copy or an extract, without payment of those fees.(4)No person may inspect a document referred to in subsection (1) or obtain a certificate as to the contents or part of the contents or obtain a copy of the document or an extract from the document, if the Registrar is satisfied that that document contains particular information or a particular fact concerning the affairs or business of a company, or of any of its subsidiaries, which information or fact the company has been prohibited under section 14(1) from disclosing or from stating on or in any document, or which information or fact the company has been exempted under that section from any obligation so to disclose or state.(5)Subsection (4) does not apply to those portions of that document which do not contain or refer to or give any indication of the particular information or particular fact which the company has been prohibited or exempted from disclosing or stating.9. Manner of payment of fees to Registration Office
(1)The payment of all fees, additional fees, annual duty or other moneys payable to the Registrar as laid down by this Act must be effected in the prescribed manner.(2)No document, form, return or notice in respect of which any fee or payment is determined under this Act, is complete unless proof of payment of the prescribed fee, additional fees, annual duty or other moneys has been delivered to the Registrar.(3)Any fees, additional fees, annual duty and any other moneys payable under this Act to the Registrar are for the account of BIPA and any outstanding fees or other money due and payable are debt due to BIPA and are recoverable by BIPA in any competent court.10. Annual report by Registrar
The Registrar must, in every calendar year, submit to the Board a report containing information concerning the registration of companies of each type, their authorised capitals or numbers of shares, increases in and reductions of capital, prospectuses, windings-up, judicial managements, deregistrations and dissolutions of companies, additional fees collected, prosecutions and convictions under this Act and other matters which the Board may direct.
Part 2 – Powers of Court and Procedure
11. Security for costs in legal proceedings by companies and bodies corporate
Where a company or other body corporate is the plaintiff or applicant in any legal proceedings, the Court may at any stage, if it appears by credible testimony that there is reason to believe that the company or body corporate or, if it is being wound up, the liquidator of the company, will be unable to pay the costs of the defendant or respondent if the defence of the latter is successful, require sufficient security to be given for those costs and may stay all proceedings until the security is given.
12. Copies of Court orders to be transmitted to Registrar and Master
Where any Court makes any order under this Act in relation to any company, the Registrar of the Court must, without delay, send a copy of the order to the Registrar and if that order relates to the winding-up or judicial management of any company, also a copy to the Master.
Part 3 – Regulations and Notices
13. Regulations
(1)The Minister may, after consultation with the Minister responsible for Justice where appropriate, make regulations -
(a)providing for the conduct and administration of the Registration Office and prescribing the practice and procedure to be observed in that office;(b)prescribing the practice and procedure to be observed in the office of the Master in connection with the winding-up and judicial management of companies;(c)providing for the reproduction of any records in the Registration Office or the office of the Master by microfilm, microcard, miniature photographic process or any other process deemed suitable by the Minister;(d)providing for the use for official purposes and the admissibility in evidence in any proceedings, whether in a court of law or otherwise, of any reproduction contemplated in paragraph (c);(e)providing for the keeping and preservation of any records, or any reproduction contemplated in paragraph (c), in the Registration Office or the office of the Master, the removal from those offices and preservation in any other place of those records or reproductions and prescribing the circumstances under which those records or reproductions may be destroyed;(f)prescribing how records required under this Act to be kept by a company may be kept, and prescribing the circumstances under which those records may be destroyed;(g)prescribing the procedure to be followed with respect to any matter in connection with the winding-up and judicial management of companies;(h)prescribing the form and the contents of any return, notice or form provided for by this Act;(i)prescribing when an additional copy or copies of documents to be lodged under the Act are to be lodged and whether the additional copy or copies are to be in the form of a copy or copies certified in the manner prescribed or are to be in duplicate original form;(j)prescribing the matters in respect of which fees are payable and the tariff of those fees;(k)prescribing the rate of the annual duty payable by companies and the additional fees payable for late payment of annual duty or payment of an amount less than the prescribed annual duty;(l)providing for a table of fees, subject to taxation by the Master, which are payable to a liquidator as remuneration;(m)prescribing a tariff of remuneration payable to any person performing on behalf of a liquidator any act relating to the winding-up of a company, and prohibiting the charging or recovery of remuneration at a higher tariff than the tariff so prescribed;(n)as to any matter required or permitted by this Act to be prescribed by regulation; and(o)generally, as to any matter which the Minister considers necessary or expedient to prescribe in order that the purposes of this Act may be achieved.(2)Any regulations made under subsection (1) may prescribe penalties for any contravention thereof or failure to comply therewith not exceeding a fine of N$2 000 or imprisonment for a period not exceeding six months or both that fine and imprisonment.14. Prohibition of disclosure of, and exemption from obligation to disclose, certain information
(1)The Board may -
(a)by notice in writing prohibit any company from disclosing, or from stating on or in any document of the company;(b)on the written application of a company to the Registrar, exempt it, subject to any conditions or restrictions which the Board may impose, from the obligation to disclose, or to state on or in any of its documents,particular information or a particular fact concerning the affairs or business of the company, or that of any of its subsidiaries, which the company would otherwise be required under this Act to disclose or to state on or in any document.
(2)Notwithstanding subsection (1) any company must, if the Registrar in a particular case in writing requires the company to do so, submit to the Registrar information which the company would otherwise have been required to submit to the Registrar in terms of this Act.(3)The Board must, when considering whether to impose a prohibition or grant an exemption under subsection (1), have regard to the right of the members of the company and of other persons to be informed of the state of affairs and the business and of the profit or loss of the company or of the company and its subsidiaries.(4)Any company which contravenes a prohibition imposed under subsection (1)(a) and any director or officer of a company who contravenes that prohibition, commits an offence and is liable to a fine which does not exceed N$4 000 or to be imprisoned for a period which does not exceed one year or to both the fine and imprisonment.(5)For the purposes of this section a company includes an external company.15. Notices amending or adding to Schedules
(1)The Minister may by notice in the Gazette amend or add to the Schedules to this Act.(2)Any notice referred to in subsection (1) may prescribe different provisions in respect of different types of companies.(3)A notice referred to in subsection (1) amending or adding to -
(a)Table A or B contained in Schedule 1 does not apply in relation to any company in respect of which the Table in question applied immediately before the date on which the notice took effect;(b)\Schedule 4 does not apply in respect of any financial year of any company which ended before that date.Part 4 – Standing Advisory Committee
Chapter 3
TYPES AND FORMS OF COMPANIES, CONVERSIONS AND LIMITATIONS ON PARTNERSHIPS AND ASSOCIATIONS
Part 1 – Types of Companies
20. Companies having share capital and companies not having share capital
(1)Two types of companies may be formed and incorporated under this Act, namely -
(a)a company having a share capital; or(b)a company not having a share capital and having the liability of its members limited by the memorandum (in this Act called “a company limited by guarantee”).(2)A company having a share capital may be either a public company or a private company having shares of par value or shares of no par value.(3)All companies limited by guarantee, including existing companies, are deemed to be public companies for the purposes of this Act.21. Non-profit associations
(1)Any association -
(a)formed or to be formed for any lawful purpose;(b)having as its object the promotion of religion, arts, sciences, education, charity, recreation, or any other cultural or social activity or communal or group interests;(c)which intends to apply its profits, if any, or other income in promoting its object;(d)which prohibits the payment of any dividend to its members; and(e)which complies with the requirements of this section in respect to its formation and registration,may be incorporated as a company limited by guarantee.
(2)The memorandum of an association referred to in subsection (1) must comply with the requirements of this Act and must, in addition, contain the following provisions -
(a)the income and property of the association however derived must be applied solely towards the promotion of its object, and no portion must be paid or transferred, directly or indirectly, by way of dividend, bonus, or otherwise, to the members of the association or to its holding company or subsidiary, but nothing contained in the memorandum prevents the payment in good faith of reasonable remuneration to any officer or employee of the association or to any member in return for any services actually rendered to the association;(b)on its winding-up, deregistration or dissolution the assets of the association remaining after the satisfaction of all its liabilities must be given or transferred to some other association or institution or associations or institutions having objects similar to its object, to be determined by the members of the association at or before the time of its dissolution or, failing that determination, by the Court.(3)Sections 55(1)(c) and 182 do not apply to an association referred to in subsection (1).(4)Existing associations incorporated under section 21 of the repealed Act are deemed to have been formed and incorporated under this section.22. Meaning of “private company” and cessation of its privileges
(1)In this Act the expression “private company” means a company having a share capital and which by its articles -
(a)restricts the right to transfer its shares;(b)limits the number of its members, other than persons who are in the employment of the company and of persons who having been formerly in the employment of the company were, while in that employment, and have continued after the termination of that employment to be, members of the company, to 50; and(c)prohibits any offer to the public for the subscription of any shares or debentures of the company.(2)Where two or more persons hold one or more shares of a company jointly they must, for the purposes of this section, be treated as a single member.(3)A private company must not alter its articles in such manner that they no longer include all of the provisions referred to in subsection (1) unless it is at the same time converted into a public company.(4)If a private company fails to comply with its articles referred to in subsection (1), it immediately becomes subject to sections 306(5), 310 and 311(1) as if it were a public company, but, the Court, on being satisfied that the failure to comply with the articles was unintentional or due to some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any other person interested and on appropriate terms and conditions, order that the company be relieved of those obligations which apply to a public company.23. Incorporation of certain branches of foreign companies and non-profit associations
(1)Notwithstanding anything to the contrary contained in this Act, a branch, established in Namibia, of a company or other association of persons, incorporated outside Namibia, or an association of persons which is not incorporated and has its head office in a foreign country may be incorporated under section 21 if -
(a)the object in Namibia of that branch corresponds with the object of the company or association concerned;(b)that branch complies with the requirements of section 21; and(c)the whole of the business and all the property, rights and obligations in Namibia of the company or association concerned will, on incorporation under section 25, be transferred in due form to vest in and be binding on the company so incorporated.(2)Notwithstanding anything to the contrary in any law -
(a)no transfer or stamp duty is payable in respect of the transfer of property contemplated in subsection (1)(c); and(b)any licence, exemption, permit, certificate or authority held in terms of any law by the company or association concerned in respect of its business or property in Namibia will, with effect from the date of incorporation of the branch concerned as a company because of subsection (1), for the purposes of that law be deemed to be held by the company so incorporated in respect of that business or property.(3)This Act in so far as it relates to external companies does not apply in the case of an external company a branch of which has been incorporated as a company by virtue of subsection (1).Part 2 – Conversion of Companies
24. Conversion of public company, having share capital into private company, and vice versa
(1)With the sanction of a special resolution and on compliance with the requirements of sections 22 and 28 and with the other requirements of this Act in respect of private companies, a public company having a share capital may convert itself into a private company having a share capital.(2)With the sanction of a special resolution and on compliance with the other requirements of this Act in respect of public companies, a private company having a share capital may convert itself into a public company having a share capital.25. Conversion of company into incorporated non-profit association or company limited by guarantee
With the sanction of a special resolution and on compliance with the requirements of section 28 and the other requirements of this Act in respect of non-profit associations and companies limited by guarantee, any company may convert itself into a non-profit association under section 21 or into a company limited by guarantee, except that a company having a share capital may only so convert itself if its share capital is cancelled.
26. Conversion of company limited by guarantee into company having share capital
With the sanction of a special resolution and on compliance with the requirements of section 28 and the other requirements of this Act in respect of companies having a share capital, a company limited by guarantee, excluding a non-profit association under section 21, but including an existing company limited by guarantee having a share capital, may convert itself into a company having a share capital.
27. Conversion of unlimited company
(1)An unlimited company referred to in section 25(1) of the repealed Act, which still exists at the commencement of this section and which has not been converted as contemplated in section 25(1) of that Act, may with the sanction of a special resolution and on compliance with section 28 and the other requirements of this Act, convert itself into any type or form of company provided for by this Act, but, that conversion does not affect the liability of its members in respect of any debts, liabilities or obligations incurred or contracts entered into by, with or on behalf of the company before the conversion.(2)Until the conversion referred to in subsection (1) takes place -
(a)section 25(2) of the repealed Act continues to apply to that unlimited company as if that section has not been repealed; and(b)the obligation imposed in terms of section 25(3) of that Act, in the case of an unlimited company which is a private company, continues to bind that company as from the date of commencement of this section.28. Notice of intended conversion of company
(1)Any company intending to convert itself into another type or form of company must, not less than 15 days before the date of the meeting convened for the purpose of passing the required special resolution, give notice in the Gazette of that intention, specifying the particulars of the proposed conversion and the date and place of the meeting.(2)Subsection (1) does not apply to any private company having a share capital intending to convert itself into a public company having a share capital.(3)If any company intending to convert itself into another type or form of company is a public company having a share capital, it must, in addition, send the notice referred to in subsection (1) to every creditor of the company by registered post not less than 15 days before the date of the meeting.29. Contents and form of articles on conversion
When the articles of any company are to be altered for the purpose of converting the company into another type or form of company under section 24, 26 or 27, sections 64(2) and 65 in so far as they relate to the contents and form of articles, do, with the necessary changes, apply to the articles of that company.
30. Registration of conversion
(1)The Registrar must, on the registration of the special resolution made under this Part and on payment of the prescribed fee and on being satisfied that the requirements of this Act have been complied with, register any conversion in the register of companies and must issue an amended certificate of incorporation, stating the date of the first registration of the company, its former name, the name as altered and the nature of the conversion.(2)Any conversion referred to in subsection (1) takes effect as from the date of the issue of the amended certificate of incorporation as contemplated in subsection (1).(3)The Registrar must give notice in the Gazette of the conversion of a company into another type or form of company.31. Effect of conversion and alteration of other registers
(1)The conversion of a company into another type or form of company under this Act does not affect the corporate existence of the company as from the date of its first registration, nor any of its rights, debts, liabilities, obligations incurred or contracts entered into by, with, or on its behalf at any time nor render defective any legal proceedings by or against the company, and any legal proceedings that could have been continued or commenced by or against it before the conversion, may, notwithstanding the conversion, be continued or commenced against the company as converted.(2)If as a result of the conversion of a company into another type or form of company, any alteration in its name pursuant to the requirements of this Act is necessary, the alteration must not be regarded as a change of name for the purposes of section 50(1).(3)On the production by a company of an amended certificate of incorporation or a certified copy to any registrar or other officer charged with the maintenance of a register under any law, and on compliance with the requirements of that registrar or officer as to the form of application, if any, and the payment of any fee prescribed by that law, if any, that registrar or other officer must make in his or her register all those alterations which are necessary because of the conversion of the company into another type or form of company.Part 3 – Conversion of Companies and Close Corporations
32. Conversion of company into close corporation
When a company is converted into a close corporation in terms of the Close Corporations Act, 1988 (Act No. 26 of 1988), the Registrar must, simultaneously with the registration of the founding statement of the close corporation by the Registrar of Close Corporations in terms of that Act, cancel the registration of the memorandum and articles of association of the company concerned.
33. Conversion of close corporation into company
(1)A close corporation may, with the written consent of all its members, be converted into a company, as long as every member of the close corporation becomes a member of that company.(2)A close corporation to be converted into a company as contemplated in subsection (1) may, subject to this section, apply to be incorporated as a company under Chapter 4 of this Act.(3)If an application referred to in subsection (2) complies with Chapter 4 and subsection (4) -
(a)the Registrar must register the memorandum and articles in accordance with section 68; and(b)the Registrar must satisfy himself or herself that simultaneously with that registration, the registration of the founding statement of the close corporation concerned is cancelled in accordance with the Close Corporations Act, 1988 (Act No. 26 of 1988).(4)An application referred to in subsection (2) must be accompanied by -
(a)a statement of the paid-up share capital, if any, for an amount not greater than the excess of the fair value of the assets to be acquired by the company, over the liabilities to be assumed by the company because of the conversion, but, the company may treat any portion of that excess not reflected as paid-up share capital, as distributable reserves; and(b)a statement by the close corporation’s accounting officer, based on the performance of his or her duties under the Close Corporations Act, 1988, that he or she is not aware of any contravention of the said Act by the close corporation or its members or of any circumstances which may render the members of the close corporation together with the close corporation jointly and severally liable for the corporation’s debts.(5)Where a conversion under this section takes place, the shares or the nominal value of the shares to be held in the company by the members individually, need not necessarily be in proportion to the members’ interests as stated in the founding statement of the close corporation concerned.(6)The Registrar must give notice in the Gazette of the conversion of a close corporation into a company.34. Effect of conversion of close corporation into a company
(1)On the registration of a company converted from a close corporation, all the assets, liabilities, rights and obligations of the corporation vest in the company.(2)Any legal proceedings instituted before the registration by or against the close corporation, may be continued by or against the company, and any other thing done by or in respect of the corporation, is deemed to have been done by or in respect of the company.(3)The juristic person which existed as a close corporation before the conversion must, notwithstanding the conversion, continue to exist as a juristic person but in the form of a company.(4)On the production by a company which has been converted from a close corporation of a certificate of incorporation referred to in section 70 to any registrar or other officer charged with the maintenance of a register under any law, and on compliance with the requirements of that registrar or officer as to the form of application and the payment of any required fee, that registrar or other officer must make in his or her register all those alterations as are necessary because of the change effected by the conversion of the close corporation into a company.(5)No transfer or stamp duty is payable in respect of alterations made in a register under subsection (4).Part 4 – Limitations on Partnerships and Associations for Gain
35. Prohibition of associations or partnerships exceeding 20 members and exemption
(1)A company, association, syndicate or partnership consisting of more than 20 persons must not be permitted or formed in Namibia for the purpose of carrying on any business that has as its object the acquisition of gain by the company, association, syndicate or partnership, or by its individual members, unless it is registered as a company under this Act, or was formed in terms of the repealed Act or any law which was in existence before the repealed Act.(2)The Board may by notice in the Gazette -
(a)exclude any association, syndicate or partnership, formed -
(i)by persons qualified to carry on any organised professions designated by the Board in that notice;(ii)for the purpose of carrying on any profession or any combinations of any professions designated by the Board,from subsection (1);
(b)include or exclude any other company, association, syndicate or partnership in or from subsection (1).36. Unregistered associations carrying on business for gain not corporate bodies
No association of persons formed after the commencement of this Act for the purpose of carrying on any business that has for its object the acquisition of gain by the association or by the individual members, is a body corporate, unless it is registered as a company under this Act, or was formed in terms of the repealed Act or any law which was in existence before the repealed Act.
Chapter 4
FORMATION, OBJECTS, CAPACITY, POWERS, NAMES, REGISTRATION AND INCORPORATION OF COMPANIES, INCIDENTAL MATTERS AND DEREGISTRATION
Part 1 – Formation, Capacity, Powers and Objects
37. Mode of forming company
Any seven or more persons, where the company to be formed is a public company, or any two or more persons, where the company to be formed is a private company, or any one person, where the company to be formed is a private company with a single member, may, for any lawful purpose, form a company having a share capital or a company limited by guarantee and secure its incorporation by complying with the requirements of this Act in respect of the registration of the memorandum and articles.
38. Capacity, powers and objects
(1)Subject to this section a company has the capacity and powers of a natural person of full capacity in so far as a juristic person is capable of having that capacity or of exercising those powers.(2)The memorandum of a company -
(a)may state the objects of a company;(b)must state the objects of the company where it is so required by this Act or any other law,but, where the objects of a company, or where any exclusion or qualification in terms of section 39 with regard to the objects or powers of the company, including an existing company, is stated, it only serves to restrict the capacity and powers of the company internally as between the company, its directors and its members, unless a person dealing with the company had actual knowledge or ought reasonably to have known of that statement of the objects of the company or of any exclusion or qualification in terms of section 39 with regard to the objects or powers of the company stated in the company’s memorandum.
(3)A non-profit association incorporated under section 21 must state its object in its memorandum as provided in subsection (1)(b) of that section.(4)Subject to subsections (2)(b) and (3), any existing company may at any time after the commencement of this Act, in accordance with section 62(4), by resolution alter its memorandum in order to remove any objects stated in its memorandum and that alteration becomes effective on the date of registration of the resolution.(5)Subsection (2) must not be construed as in any way limiting the right of a company to -
(a)claim damages from a director, officer or agent of the company for a transaction concluded; or(b)obtain a restraining order against a director, officer or agent from entering into a proposed transaction,where that transaction falls outside the objects or the powers of the company.
39. Ancillary objects and powers of company
(1)Where the objects of a company are stated in its memorandum, there must be included in those objects unlimited objects ancillary to those stated objects except those specific ancillary objects which are expressly excluded in its memorandum.(2)Subject to any limitation imposed by this Act, a company referred to in subsection (1) has plenary powers, including the common powers stated in Schedule 2 to this Act, to enable it to realise its objects and ancillary objects, except those specific powers which are expressly excluded or qualified in its memorandum.40. Dealings between company and other persons
A company or a guarantor of an obligation of a company may not assert against a person dealing with the company or with a person who has acquired any property, rights or interests from the company that -
(a)a person named as a director of the company in the most recent return lodged with the Registrar under section 224 -
(i)is not a director of the company;(ii)has not been duly appointed; or(iii)does not have authority to exercise a power which a director of a company carrying on business of the kind carried on by the company customarily has authority to exercise;(b)a person held out by the company as a director, officer or agent of the company -
(i)has not been duly appointed; or(ii)does not have authority to exercise a power which a director, officer or agent of a company carrying on business of the kind carried on by the company customarily has authority to exercise;(c)a person held out by the company as a director, officer or agent of the company with authority to exercise a power which a director, officer or agent of a company carrying on business of the kind carried on by the company does not customarily have authority to exercise, does not have authority to exercise that power;(d)a document issued on behalf of a company by a director, an officer or agent of the company with actual or usual authority to issue the document is not valid or genuine,
unless that person has, or ought reasonably to have, by virtue of his or her position with or relationship to the company, knowledge of the matters referred to in paragraphs (a), (b), (c) or (d), as the case may be.
41. No constructive knowledge
A person is not affected by, or deemed to have notice or knowledge of the contents of, the memorandum or articles of, or any other document relating to a company, merely because the memorandum, articles or other document -
(a)is registered by, or lodged with, the Registrar; or(b)is available for inspection or kept at the registered office of a company in accordance with this Act.
42. Power as to pre-incorporation contracts
Any contract made in writing by a person professing to act as agent or trustee for a company not yet incorporated is capable of being ratified or adopted by or otherwise made binding upon and enforceable by that company after it has been duly incorporated as if it had been duly incorporated at the time when the contract was made and that contract had been made without its authority, but, the memorandum on its registration, must contain a statement with regard to the ratification or adoption of or the acquisition of rights and obligations in respect of that contract, and that two copies of that contract, one of which must be certified by a notary public, have been lodged with the Registrar together with the lodgement for registration of the memorandum and articles of the company.
43. Loans made and security provided by subsidiary
(1)For the purposes of this section -
(a)“funds” include money, shares, debentures or any other property;(b)“loan” includes any credit extended by a company, if the debt concerned is not payable or being paid in accordance with the normal business practice of the company in respect of the payment to it of other debts of the same kind;(c)“security” includes a guarantee.(2)If -
(a)any funds of a company were employed directly or indirectly, whether through the instrumentality of its subsidiary or otherwise, in a loan to any company which is its holding company or which is a subsidiary of that holding company but not a subsidiary of itself; or(b)a company directly or indirectly, whether through the instrumentality of its subsidiary or otherwise, provided any security to another person in connection with an obligation of any company which is its holding company or which is a subsidiary of that holding company but not a subsidiary of itself,particulars of that loan or security, as the case may be, must be stated in the annual financial statements of the company for every year during which that loan or security was in operation.
(3)Subsection (2) does not apply in respect of loans made or security provided in good faith in the ordinary course of the business of a company actually and regularly carrying on a business a substantial part of which is the making of loans or the provision of security, as the case may be.(4)Any director or officer of a company who fails to take all reasonable steps to secure compliance with subsection (2) commits an offence and is liable to a fine which does not exceed N$8 000 or to be imprisoned for a period which does not exceed two years or to both the fine and imprisonment.(5)In any prosecution against any director or officer of a company under subsection (4), the defence referred to in section 292(5) is, with the necessary changes, available to him or her.(6)Any director or officer of a company who authorises or permits or is a party to the making of any loan or the provision of any security contemplated in subsection (2)(a), is liable to the company for any damage directly arising from the making of that loan or the provision of that security on terms or conditions which, at the time of the making of that loan or the provision of that security, were not fair to the company or failed to provide reasonable protection for its business interests.(7)A director or officer who has paid any amount as damages by virtue of subsection (6) may recover that part of that amount as the Court considers equitable, from any other director or officer who is in terms of that subsection also liable to the company for the same damage.(8)For the purposes of subsections (6) and (7), “director or officer” of a company includes any director or officer of a holding company of that company, and for the purposes of recovery of the damages as are contemplated in subsection (6) sections 274, 275 and 276 do, with the necessary changes, apply as if a director or officer or past director or officer of that holding company was a director or officer or past director or officer of that company, respectively.(9)In enquiring, for the purposes of subsection (6), whether or not any terms or conditions were fair to the company or failed to provide reasonable protection for its business interests, regard must be had, without prejudice to the generality of the enquiry, to -
(a)whether, in view of the financial position of the parties, the loan should have been made or the security should have been provided at all;(b)in the case of a loan, whether security has been or should in the circumstances have been provided, and whether any security provided is adequate;(c)the consideration for the loan or security, including any interest or other benefit received;(d)the term of the loan or security; and(e)the manner of repayment of the loan or discharge of the security.(10)This section does not derogate from any other rule of law relating to the liability of a director or officer of a company.(11)This section does not apply to anything done by a company with the consent of all its members.44. No financial assistance to purchase shares of company or holding company
(1)A company must not give, whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription made or to be made by any person of or for any shares of the company, or where the company is a subsidiary company, of its holding company.(2)Subsection (1) must not be construed as prohibiting -
(a)the lending of money in the ordinary course of its business by a company whose main business is the lending of money;(b)the provision by a company, in accordance with any scheme for the time being in force, of money for the subscription for or purchase of shares of the company or its holding company by trustees to be held by or for the benefit of employees of the company, including any director holding a salaried employment or office in the company; or(c)the making by a company of loans to persons, other than directors, in the employment of the company with a view to enabling those persons to purchase or subscribe for shares of the company or its holding company to be held by themselves as owners; or(d)the provision of financial assistance for the acquisition of shares in a company or its holding company -
(i)with the prior approval of the particular transaction given by special resolution at a general meeting; and(ii)if there are reasonable grounds for believing that -
(aa)the company is, or would after payment be, able to pay its debts as they become due in the ordinary course of business; or(bb)the consolidated assets of the company fairly valued would after the payment be more than the consolidated liabilities of the company.(3)Any company which and every director or officer of that company who contravenes subsection (1), commits an offence and is liable to a fine which does not exceed N$4 000 or to be imprisoned for a period which does not exceed one year or to both the fine and imprisonment.(4)For the purpose of subsection (3) “director”, in relation to a company, includes any person who at the time of the alleged contravention was a director of the company.(5)It is a defence in any proceedings under this section against any director or officer of a company if it is proved that the accused was not a party to the contravention.45. Company not to be member of its holding company
(1)Save as is provided in subsection (2), if shares in a company are acquired in accordance with section 95 by its subsidiary, for so long as those shares are held by the subsidiary -
(a)no voting rights attaching to those shares may be exercised; and(b)the votes able to be cast at any meeting of shareholders must be reduced by the votes in respect of shares held by the subsidiary,but this subsection does not apply where the shares are acquired in a subsidiary of the holding company which is also a subsidiary of the acquiring company.
(2)Subsection (1) does not apply in relation to a subsidiary acting in a representative capacity or as a trustee, unless the holding company or its subsidiary is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a business which includes the lending of money.(3)In relation to a company limited by guarantee which is a holding company, the reference in this section to shares of a company, must be construed as including a reference to the interest of its members as such, whatever the form of that interest.(4)For the purposes of this section “acquire” includes any shares that the subsidiary becomes entitled to in any other manner.46. No division into interests, rights to profits or shares in guarantee companies
(1)In the case of a company limited by guarantee, every provision in the memorandum or articles or in any resolution of the company purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member is void.(2)Any provision in the memorandum or articles or in any resolution of a company limited by guarantee, purporting to divide the undertaking of the company into shares or interests is void.Part 2 – Names of Companies
47. Names of companies not to be undesirable
The Registrar must not register a memorandum containing a name for a company to be incorporated if the Registrar reasonably believes that the name is undesirable.
48. Reservation of name
(1)The Registrar may, on written application on the prescribed form and on payment of the prescribed fee, reserve a name or a shortened form of the name of a company, pending the registration of a memorandum or a change of name by that company or the registration of a shortened form of the name.(2)If the name of a company or a shortened form thereof is in a language other than the official language, a translation of the name in the official language, in so far as it is possible, must be submitted to the Registrar together with the application referred to in subsection (1).(3)A reservation referred to in subsection (1) is for a period not exceeding two months or any extended period, not exceeding in all three months, which the Registrar, on payment of the prescribed fee, may in the special circumstances of any case allow.49. Registration of shortened form of name or defensive name
(1)The memorandum of any company to be incorporated may contain one shortened form of the company’s name, and any company may, on the prescribed form and on payment of the prescribed fee, apply to the Registrar for the registration of that shortened form of its name, if the shortened form of the name is not undesirable.(2)Any person may on application on the prescribed form and on payment of the prescribed fee apply to the Registrar -
(a)to register any name as a defensive name; or(b)to renew the registration of a name as a defensive name,which the Registrar reasonably believes is not undesirable and in respect of which that person has furnished proof, to the satisfaction of the Registrar, that he or she has a direct and material interest.
(3)If the defensive name referred to in subsection (2) is in a language other than the official language, a translation in the official language, in so far as it is possible, must be submitted to the Registrar together with the application referred to in that subsection.(4)If the Registrar grants any application referred to in subsection (2), he or she must register the name in question as a defensive name for a period not exceeding two years or renew the registration of the name in question as a defensive name for a period not exceeding two years, as the case may be.(5)The Registrar must register a shortened form of the name of the company concerned or a defensive name, and where a registration is effected pursuant to an application under subsection (1) or (2), the Registrar must give notice of the registration in the Gazette.50. Change of name and effect
(1)Any company may by special resolution change its name to a name which the Registrar reasonably believes not to be undesirable.(2)Where a company changes its name, it must at the same time, if a shortened form of the name of the company has been registered under section 49(5), and that shortened form is no longer applicable to the name of the company as changed, apply on the prescribed form and on payment of the prescribed fee -
(a)to change that shortened form of the name to a new shortened form of the name approved by the Registrar; or(b)to deregister that former shortened form of the name of the company.(3)Where the name or shortened form of the name of a company is changed -
(a)the company must, if that changed name is not in the official language, submit to the Registrar, in so far as it is possible, a translation of the name in the official language; and(b)the Registrar must -
(i)enter the new name or shortened form of the name in the register in place of the former name or shortened form of the name;(ii)issue a certificate of incorporation altered to meet the circumstances of the case or a certificate that the new name or shortened form of the name, has been entered in the register in place of the former name or shortened form of the name; and(iii)give notice of the change of name or shortened form of the name in the Gazette.(4)A change of name of a company does not affect any rights, debts, liabilities or obligations of the company, nor render defective any legal proceedings by or against the company, and any legal proceedings that could have been continued or commenced by or against it prior to that change of name, may, notwithstanding that change of name, be continued or commence by or against the company under its new name.(5)On the production by a company of an amended certificate of incorporation or a certificate of the change of the name of that company or a certified copy to any registrar or other officer charged with the maintenance of a register under any law, and on compliance with the requirements of that registrar or officer as to the form of application, if any, and the payment of any fee prescribed by that law, if any, that registrar or other officer must make in his or her register all alterations which are necessitated by the change of the name of the company.51. Order to change name
(1)If within a period of one year after the registration of any memorandum or shortened form of a name of a company or after the registration or the renewal of the registration of a name referred to in section 49(2) or after the date of an amended certificate of incorporation or a certificate of change of name or shortened form of a name referred to in section 50(2), it appears that the name contained in the memorandum or shortened form of that name or the name referred to in section 49(2) or the changed name or the shortened form of that changed name referred to in the last-mentioned certificate is undesirable, the Registrar must within that period order the company concerned or the person referred to in section 49(2) to change the name or shortened form of the name.(2)If within a period of one year after the registration of any memorandum or shortened form of a name of a company or a name referred to in section 49(2) or after the date of an amended certificate of incorporation or a certificate of change of name or shortened form of a name referred to in section 50(2), any person lodges an objection in writing with the Registrar against the name contained in the memorandum or shortened form of that name or the name referred to in section 49(2) or the changed name or the shortened form of that changed name referred to in the last-mentioned certificate, on the grounds that that name or shortened form of a name is calculated to cause damage to the objector or is undesirable, the Registrar may, if he or she is satisfied that the objection is sound, order the company concerned or the person referred to in section 49(2) to change the said name or shortened form of a name.(3)Within a period of two years after the registration of any memorandum or shortened form of a name of a company or a name referred to in section 49(2) or after the date of an amended certificate of incorporation or a certificate of change of name or shortened form of a name referred to in section 50(2), a person who has not lodged any relevant objection in terms of subsection (2) may apply to the Court for an order directing the company concerned or the person referred to in section 49(2) to change the said name or shortened form on the grounds that the said name or shortened form is undesirable or is calculated to cause damage to the applicant, and the Court may on that application make an appropriate order.(4)If, at any time, the Registrar reasonably believes that the name of a company, or the shortened form of a name of a company, gives so misleading an indication of the nature of its activities as to be calculated to deceive the public, the Registrar may order the company concerned to change its name or the shortened form of its name, as the case may be.52. Provisions as to order to change name
(1)The order issued by the Registrar under section 51, including the reasons for that an order, for the change of a name of a company or a shortened form of a name of a company or a name referred to in section 49(2) must be issued by the Registrar in writing and sent by registered post to the company at its registered office, or to the person referred to in section 49(2) at that person’s last-known address, and must require that company or person -
(a)to comply with the order within two months from the date of its issue; or(b)to give reasons within two months from the date of its issue to the Registrar as to why that name or shortened form of a name of a company should not be changed.(2)The Registrar may, on good cause shown, extend the period of two months referred to in subsection (1) for any further period not exceeding two months.(3)If a company or a person has submitted reasons as to why the name or shortened form of a name of a company should not be changed, the Registrar may, after consideration of those reasons, either withdraw that order or make a final order and subsections (1)(a) and (2) do, with the necessary changes, apply with regard to that final order.(4)If a company or person referred to in subsection (1), as the case may be, fails to comply with any order issued by the Registrar under subsection (1) or (3) within the period or extended period referred to in subsection (1) or (2), as the case may be, or if that company or person has applied to Court for relief under section 54 and the Court has upheld the Registrar’s order and that company or person fails to comply with that order within two months from the date of the final decision by the Court, that company or person commits an offence and is liable to a fine which does not exceed N$40 for every day during which the contravention continues.53. Registrar may call for affidavits and shall give reasons for decisions as to names
(1)The Registrar may for the purposes of any decision as to any name or shortened form of a name referred to in section 47, 48, 49, 50 or 51 call for any evidence on affidavit or otherwise which is necessary.(2)The Registrar must with regard to any decision or order of the Registrar under section 47, 48, 49 or 50 furnish written reasons for that decision or order.54. Recourse to Court in matters as to names
Any company or person aggrieved by any decision or order of the Registrar under section 47, 48, 49, 50 or 51 may, within one month after the date of that decision or order, apply to the Court for relief, and the Court has power to consider the merits of that matter, to receive further evidence and to make any appropriate order.
55. Formal requirements as to names of companies
(1)Subject to this section -
(a)the name of a public company having a share capital must include, as its last word, the word “Limited”;(b)the name of a private company having a share capital must include as its last two words, the words “(Proprietary) Limited”;(c)the name of a company limited by guarantee must include -
(i)the word “Limited” as its last word; and(ii)the statement “(Limited by Guarantee)” subjoined to that name.(2)There must be included in the name of any external company, the memorandum of which has been registered under this Act, the statement “Incorporated in ... (stating the name of the foreign country concerned)” subjoined to that name.(3)The name of a non-profit association incorporated under this Act must not include the word and statement referred to in subsection (1)(c), but the statement “Non- profit association incorporated under section 21” must be included in and be subjoined to that name, but an association incorporated not for gain under the repealed Act may instead of that statement include in and subjoin to its name the statement “Incorporated Association not for Gain”.(4)The name of a private company having a share capital and the memorandum of which contains the provision referred to in section 60(b), must not include the words referred to in subsection (1)(b), but must include the word “Incorporated”, as its last word, in its name.(5)If a company is being wound up by the Court or voluntarily or is placed under judicial management, the statement “In Liquidation”, “In Voluntary Liquidation” or “Under Judicial Management”, as the case may be, must be included in and be subjoined to the name of the company concerned and if the winding-up order or judicial management order is discharged, or the voluntary winding-up ceases, that statement must be omitted from the name of that company.(6)The addition to or omission from the name of any company of the words or statements provided for by this section as a result of -
(a)the conversion of a company into another type or form of company;(b)the insertion in or deletion from the memorandum of a private company of the provision referred to in section 60(b); or(c)the discharge of a winding-up order or judicial management order or the cessation of voluntary winding-up,must not be taken to be a change of name for the purposes of section 50(1), except that subsections (2), (3) and (4) of that section apply in the case of that addition or omission as if it were a change of name.
(7)If a company is being wound up by the Court, or voluntarily, or is placed under judicial management, the Registrar must, on receipt of a copy of the relevant order of Court or on registration of a special resolution for the voluntary winding-up of the company in terms of section 354, alter the register to include in and subjoin to the name of the company concerned the statement “In Liquidation”, “In Voluntary Liquidation” or “Under Judicial Management”, as the case may be, and if the winding-up order or judicial management order is discharged, or the winding-up ceases, the Registrar must likewise on receipt of a copy of the relevant order of Court, alter the register to omit that statement from the name of the company concerned.(8)If any company fails to comply with subsection (1), (2), (3), (4), (5) or (6) or in any way uses a name in contravention of any of those provisions, it commits an offence and is liable to a fine which does not exceed N$400.56. Use and publication of name by company
(1)Every company must -
(a)display its name on the outside of its registered office and every office or place in which its business is carried on, in a conspicuous position and in characters easily legible;(b)have its name engraved in legible characters on its seal ; and(c)have its name and registration number mentioned in legible characters in all notices and other official publications of the company and in all bills of exchange, promissory notes, endorsements, cheques, and orders for money or goods purporting to be signed by or on behalf of the company and in all letters, delivery notes, invoices, receipts, and letters of credit of the company.(2)For the purposes of subsection (1) -
(a)the abbreviations “Ltd”, “Pty”, “Inc”, “Co” and “&” may be used for the words “Limited”, “Proprietary”, “Incorporated”, “Company” and “and” in a company’s name; and(b)a company must not use the shortened form of its name unless it is used in conjunction with its name.(3)A director or officer of a company or a person acting on its behalf must not -
(a)use or authorise the use of any seal purporting to be a seal of the company whereon its name is not so engraved as contemplated in subsection (1)(b);(b)issue or authorise the issue of any notice or other official publication of the company, or sign or authorise to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods, wherein its name is not mentioned in the manner contemplated in subsection (1)(c); or(c)issue or authorise the issue of any letter, delivery note, invoice, receipt or letter of credit of the company wherein its name is not mentioned in the manner contemplated in subsection (1)(c).(4)Any director, officer or person referred to in subsection (3) who contravenes that subsection commits an offence and is liable to a fine which does not exceed N$400.(5)A director, officer or person referred to in subsection (3) who contravenes that subsection is further liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount stated on the document if non- compliance with subsection (3) results in default of payment by the company.(6)A company which contravenes or fails to comply with subsection (1) commits an offence and is liable to a fine which does not exceed N$400.57. Improper use of word “Limited” or “Incorporated” an offence
Any person trading or carrying on business under a name or title of which the word “Limited” or “Incorporated” is the last word, commits, unless the entity is incorporated under this Act or any other law, an offence and is liable to a fine which does not exceed N$40 for every day during which the contravention continues.
58. Savings provisions regarding certain existing name registrations
Any registration before the date of coming into operation of this Part in terms of a provision of the repealed Act of a name, or a translated name, of an existing company, or any shortened form of the name, in a language other than the official language, or of any name, translated name, or shortened form, of a company, containing a word or expression in the other language, is for the purposes of this Act -
(a)deemed to be proper registration under the corresponding provisions of this Act; and(b)the use of that name, translated name or shortened form or any word or expression contained in that name, translated name or shortened form is deemed to be sufficient compliance with the requirements of sections 55 and 56(2)(a).
Part 3 – Memorandum of Association
59. Requirements for memorandum of association
(1)The memorandum of a company must state the purpose, referred to in section 37, for which it is to be formed and incorporated, describing the business which the company is to carry on, or, in the case of a non-profit association, the object it is to promote, and in addition -
(a)the name of the company;(b)where the company in terms of section 38 elected to state or must state its objects -
(i)the objects of the company, stating the general nature of the business which it is contemplated the company will be entitled to carry on;(ii)the specific ancillary objects, referred to in section 39(1), if any, which are excluded from the unlimited ancillary objects of the company;(iii)the specific powers or part of any powers of the company, referred to in section 39(2), if any, which are excluded from the plenary powers or the powers set out in Schedule 2.(2)If the company is to have a share capital, the memorandum must state -
(a)the amount of the share capital with which it is proposed to be registered and the division of the share capital into shares of a fixed amount;(b)the number of shares if the company is to have shares of no par value; and(c)the number of shares which each subscriber undertakes to take up, stated in words opposite his or her name, subject to the requirement that no subscriber may take less than one share.(3)If the company is to be a company limited by guarantee, the memorandum must state -
(a)that the liability of the members is limited to the amount referred to in paragraph (b); and(b)that each member undertakes to contribute to the assets of the company in the event of its being wound up while a member or within one year afterwards, for payment of the debts and liabilities of the company contracted before he or she ceases to be a member, and of the costs, charges and expenses of the winding-up, and for adjustment of the rights of the contributories among themselves, any amount which may be required, not exceeding a specified amount but not less than one Namibian dollar.60. Memorandum may contain special conditions and provide for unlimited liability of directors
The memorandum of a company may, in addition to the requirements of section 59 -
(a)contain any special conditions which apply to the company, and the requirements, if any, additional to those provided for in this Act for the alteration of those conditions;(b)in the case of a private company, provide that the directors and past directors are liable jointly and severally, together with the company, for debts and liabilities of the company which are or were contracted during their periods of office, in which case those directors and past directors are so liable.
61. Form and signing of memorandum
(1)The memorandum must be and be completed in the form prescribed.(2)The memorandum of a public company must be signed by not less than seven subscribers and of a private company by one or more subscribers, stating their full names, occupations and residential, business and postal addresses, and each subscriber must sign the memorandum in the presence of at least one witness who must attest the signature and state his or her residential, business and postal address.Part 4 – Alteration of Memorandum
62. Alteration of memorandum as to special conditions and other provisions
(1)Subject to subsection (3) and unless prohibited by the condition itself, a special condition contained in the memorandum may be altered by special resolution or in the manner specified in that special condition.(2)Any private company may at any time by special resolution and with the written consent of each person being then a director of the company, incorporate in its memorandum the provision referred to in section 60(b).(3)A private company may by special resolution alter or remove the provision referred to in section 60(b) and contained in its memorandum provided the alteration or removal is confirmed by the Court if it is satisfied that that alteration or removal would be just and equitable.(4)Any other provision of the memorandum of a company may be altered by special resolution.(5)Nothing in this section authorises any alteration of a memorandum constituting a variation or abrogation of the special rights of any class of members, except that those rights may be altered or abrogated in the manner provided for in the memorandum for that variation or abrogation.63. Lodgment of altered memorandum
(1)The Registrar may, in writing, request any company which has lodged a special resolution altering its memorandum, to lodge, within 14 days after the date of the request, a copy of the memorandum as so altered.(2)Any company which fails to comply with any request under subsection (1) commits an offence and is liable to a fine which does not exceed N$40 for every day during which the contravention continues.Part 5 – Articles of Association
64. Companies to have articles
(1)There must be registered with the memorandum of a company, articles of association, prescribing articles for the company.(2)The articles of a company having a share capital -
(a)if a public company, may consist of the articles contained in Table A of Schedule 1; and(b)if a private company, may consist of the articles contained in Table B of Schedule 1,subject to any additions, omissions and modifications which are stated in the articles, and the articles contained in the said Schedule do, so far as applicable and not excluded or modified, apply to that company, but, any condition contained in the articles of a company for compulsory loans to be made by members of the company to the company is invalid.
65. Form and signing of articles
(1)The articles must be and be completed in the form prescribed.(2)The articles must be signed by each subscriber of the memorandum stating his or her full name, occupation and residential, business and postal address, in the presence of at least one witness who must attest the signature and state his or her residential, business and postal address.66. Consolidation of articles
A company may at any time after the registration of its articles, submit to the Registrar a document in the prescribed form, containing a consolidated and full statement of all the articles applying to the company and, on payment of the prescribed fee, the Registrar must, if satisfied that the articles of the company have been truly stated in the consolidated document, endorse on that document a certificate to the effect that the articles stated therein constitute the articles of the company as at the date of the certificate.
67. Alteration of articles
(1)Subject to the conditions contained in its memorandum, a company may, by special resolution, alter or add to its articles and any alteration or addition so made is as valid as if originally contained therein, and is subject in like manner to alteration by special resolution.(2)Section 63 which relates to the lodgment of a copy of an altered memorandum does, with the necessary changes, apply to the lodgment of altered articles.Part 6 – Registration, Incorporation and Deregistration
68. Registration of memorandum and articles
