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VOLUME: VIII
COMPANIES
CHAPTER: 42.01

ARRANGEMENT OF SECTIONS

     SECTION

 

PART I
Preliminary

                1.         Short title

                2.         Interpretation

                3.         Public notice

                4.         Meaning of "solvency test"

                5.         Stated capital

                6.         Meaning of "holding company" and "subsidiary"

                7.         Definition of "control"

                8.         Certain matters to be disregarded

                9.         Act binds the State

               10.         The Registrar

               11.         Registers

               12.         Registration of documents

               13.         Inspection and evidence of registers

               14.         Registrar’s powers of inspection

               15.         Appeals from Registrar’s decisions

               16.         Enforcement of duty on companies to make return to Registrar

               17.         Lost documents

               18.         Extension of time

 

PART II
Incorporation - Essential Requirements

               19.         Essential requirements and types of company

               20.         Right to apply for registration

               21.         Application for registration

               22.         Registration

            22A.         Delegation of powers by the Registrar

               23.         Certificate of incorporation

               24.         Separate legal personality

 

PART III
Capacity, Powers and Validity of Actions

               25.         Capacity and powers

               26.         Validity of actions

               27.         Dealings between company and other persons

               28.         No constructive notice

 

PART IV
Company Names

               29.         Name to be reserved

               30.         Name of company if liability of shareholders limited and if a private company

               31.         Power to dispense with "limited"

               32.         Application for reservation of name

               33.         Name of company

               34.         Change of name

               35.         Direction to change name

               36.         Use of company name

 

PART V
Company Constitution

               37.         No requirement for company to have constitution

               38.         Effect of Act on company having constitution

               39.         Effect of Act on company not having constitution

               40.         Form of constitution

               41.         Contents of constitution

               42.         Effect of constitution

               43.         Adoption, alteration and revocation of constitution

               44.         New form of constitution

 

PART VI
Shares

               45.         Legal nature and rights and powers attaching to shares

               46.         Types of shares

               47.         No par value shares

               48.         Transferability of shares

               49.         Issue of shares on registration and amalgamation

               50.         Issue of other shares

               51.         Alteration in number of shares

               52.         Pre-emptive rights to new issues

               53.         Consideration for issue of shares

               54.         Shares not paid for in cash

               55.         Calls on shares

               56.         Consent to issue of shares

               57.         Time of issue of shares

               58.         Board may authorise distributions to shareholders

               59.         Reduction of stated capital

               60.         Dividends

               61.         Shares in lieu of dividends

               62.         Shareholder discounts

               63.         Recovery of distributions

               64.         Reduction of shareholders liability and distribution

               65.         Company may acquire or redeem its own shares

               66.         Purchase of own shares

               67.         Liability of directors and shareholders where solvency test not satisfied

               68.         Cancellation of shares repurchased

               69.         Company may hold its own shares

               70.         Reissue of shares company holds in itself

               71.         Enforceability of contract to repurchase shares

               72.         Meaning of "redeemable"

               73.         Redemption at option of company

               74.         Redemption at option of shareholder

               75.         Redemption on fixed date

               76.         Restrictions on giving financial assistance

               77.         Transactions not prohibited by section 76

               78.         Subsidiary may not hold shares in holding company

               79.         Statement of rights to be given to shareholders

 

PART VII
Title Transfers, Share Register and Certificates

               80.         Lien on shares

               81.         Transfer of shares

               82.         Transfer of shares by operation of law

               83.         Company to maintain share register

               84.         Place of share register

               85.         Share register as evidence of legal title

               86.         Secretary’s duty to supervise share register

               87.         Power of court to rectify share register

               88.         Trusts not to be entered on register

               89.         Share Certificate

 

PART VIII
Shareholders and their Rights and Obligations

               90.         Meaning of "shareholder"

               91.         Liability of shareholders

               92.         Liability for calls and forfeiture of shares

               93.         Shareholders not required to acquire shares by alteration to constitution

               94.         Exercise of powers reserved to shareholders

               95.         Exercise of powers by ordinary resolution

               96.         Powers exercised by special resolution

               97.         Management review by shareholders

               98.         Shareholder may require company to purchase shares

               99.         Notice requiring purchase

             100.         Purchase by company

             101.         Purchase of shares by third party

             102.         Court may grant exemption

             103.         Court may grant exemption if company insolvent

             104.         Variation of class rights

             105.         Annual meeting of shareholders

             106.         Special meetings of shareholders

             107.         Resolution in lieu of meeting

             108.         Court may call meeting of shareholders

             109.         Proceedings at meetings

             110.         Shareholders entitled to receive distributions, attend meetings and exercise rights

 

PART IX
Debentures and Registration of Charges

             111.         Creation and issue of debentures

             112.         Security for debentures

             113.         Bonds to be registered in deed registry; copies of documents to be annexed to bonds and deeds of pledge

             114.         Debenture may be registered

             115.         Trustee for debenture holders

             116.         Issue of debentures at different dates and ranking of preference

             117.         Rights of debenture holders

             118.         Power to re-issue redeemed debenture in certain cases

             119.         Debenture to be described as secured or unsecured

             120.         Form of debentures or debenture certificates

             121.         Register of pledges, cessions and bonds and Register of debenture holders

             122.         Special powers of court

             123.         Perpetual debentures

             124.         Debentures to bearer

             125.         Filing of particulars of charges

 

PART X
Directors and Secretaries - their Powers and Duties

             126.         Meaning of "director" and "board"

             127.         Management of company

             128.         Major transactions

             129.         Delegation of powers

             130.         Duty of directors to act in good faith and in best interest of company

             131.         Exercise of powers in relation to employees

             132.         Use of information and advice

             133.         Approval of the company

             134.         Meaning of "interested"

             135.         Disclosure of interest

             136.         Avoidance of transactions

             137.         Effect on third parties

             138.         Application of sections 135 and 136 in certain cases

             139.         Interested director may vote

             140.         Use of company information

             141.         Meaning of "relevant interest"

             142.         Relevant interests to be disregarded in certain cases

             143.         Disclosure of share dealing by directors

             144.         Restrictions on share dealing by directors

             145.         Number of directors

             146.         Qualifications of directors

             147.         Director’s consent required

             148.         Appointment of first and subsequent directors

             149.         Court may appoint directors

             150.         Appointment of directors to be voted on individually

             151.         Removal of directors

             152.         Director ceasing to hold office

             153.         Resignation of last remaining director

             154.         Validity of director’s acts

             155.         Notice of change of directors and secretary

             156.         Proceedings of board

             157.         Remuneration, loans and other benefits

             158.         Standard of care and civil liability of officers

             159.         Indemnity and insurance

             160.         Duty of directors on insolvency

             161.         Secretary

             162.         Qualifications of Company Secretary

             163.         Duties of Company Secretary

 

PART XI
Enforcement

             164.         Interpretation

             165.         Interdict

             166.         Derivative actions

             167.         Costs of derivative action to be met by company

             168.         Powers of court where leave granted

             169.         Compromise, settlement, or withdrawal of derivative action

             170.         Actions by shareholders against directors

             171.         Actions by shareholders against company

             172.         Actions by shareholder to require company to act

             173.         Representative actions

             174.         Prejudiced shareholders

             175.         Alteration to constitution

             176.         Ratification of certain actions of directors

 

PART XII
Administration of Companies

             177.         Method of contracting

             178.         Attorneys

             179.         Pre-incorporation contracts may be ratified

             180.         Warranties implied in pre-incorporation contracts

             181.         Failure to ratify

             182.         Registered office

             183.         Description of registered office

             184.         Change of registered office

             185.         Requirement to change registered office

             186.         Company records

             187.         Form of records

             188.         Inspection of records by directors

 

PART XIII
Accounting Records, Audit and Disclosure by Companies

             189.         Accounting records to be kept

             190.         Place accounting records to be kept

             191.         Appointment of auditors

             192.         Auditors’ fees and expenses

             193.         Appointment of partnership as auditor

             194.         Qualifications of auditors

             195.         Automatic reappointment

             196.         Appointment of first auditor

             197.         Replacement of auditor

             198.         Auditor not seeking reappointment

             199.         Auditor to avoid conflict of interest

             200.         Auditor’s report

             201.         Access to information

             202.         Auditor’s attendance at shareholders’ meeting

             203.         Company to provide auditors report to trustee for debenture holders

             204.         Duties of auditor on becoming aware of irregularity

             205.         Obligation to prepare financial statements

             206.         Contents and form of financial statements

             207.         Obligation to prepare group financial statements

             208.         Contents and form of group financial statement

             209.         Registration of financial statement

             210.         Meaning of "balance sheet date"

             211.         Meaning of "financial statements and group financial statements"

             212.         Obligation to prepare annual report

             213.         Sending of annual report to shareholders

             214.         Sending of financial statements to shareholders who elect not to receive annual report

             215.         Contents of annual report

             216.         Failure to disclose

             217.         Annual return

             218.         Public inspection of company records

             219.         Inspection of company records by shareholders

             220.         Manner of inspection

             221.         Copies of documents

 

PART XIV
Amalgamations

             222.         Amalgamations

             223.         Amalgamation proposal

             224.         Approval of amalgamation proposal

             225.         Short form amalgamation

             226.         Registration of amalgamation proposal

             227.         Certificate of amalgamation

             228.         Effect of certificate of amalgamation

             229.         Registers

             230.         Powers of court in other cases

 

PART XV
Compromises with Creditors

             231.         Interpretation

             232.         Compromise proposal

             233.         Notice of proposed compromise

             234.         Approval and effect of compromise

             235.         Variation of compromise

             236.         Powers of court

             237.         Effect of compromise in liquidation of company

             238.         Costs of compromise

 

PART XVI
Approval of Arrangements, Amalgamations and Compromises by Court

             239.         Interpretation

             240.         Approval of arrangements, amalgamation and compromises

             241.         Court may make additional orders

             242.         Court may approve amalgamation or compromise

             243.         Application of section 237

 

PART XVII
Companies Limited by Guarantee

             244.         Provisions which apply to a company limited by guarantee

 

PART XVIII
Private Companies

             245.         Limitations and privileges of a private company

             246.         Private companies need not keep interests register

             247.         Unanimous agreement by shareholders

 

PART XIX
Close Companies

             248.         Formation of close company

             249.         Qualification for membership of and nature of business of a close company

             250.         Contributions by members

             251.         Postal address and registered office

             252.         Deregistration

             253.         Nature of member’s interest

             254.         Representation of members

             255.         Acquisition of member’s interest by new member

             256.         Disposal of interest of insolvent member

             257.         Disposal of interest of deceased member

             258.         Maintenance of aggregate of members’ interest

             259.         Payment by close company for members’ interest acquired

             260.         Financial assistance by close company in respect of acquisition of members’ interest

             261.         Registration of changes

             262.         Management

             263.         Meetings

             264.         Fiduciary position of members

             265.         Payments by close company to members

             266.         Prohibition of loans and furnishing of security to members and others by close company

             267.         Liability of members for negligence

             268.         Rules applying to internal relations in the absence of contrary agreement

             269.         Disqualification of persons regarding management of close company

             270.         Accounting records

             271.         Financial year of close company

             272.         Annual financial statements

             273.         Appointment of accounting officers

             274.         Qualifications of accounting officers

             275.         Right of access and remuneration of accounting officers

             276.         Duties of accounting officers

 

PART XX
Alteration in Nature of Companies

             277.         Conversion of company limited by shares to company limited by guarantee

             278.         Conversion of private company into close company

             279.         Conversion of close company into a private company

             280.         Conversion of public and private companies

 

PART XXI
Investigations

             281.         Qualifications of Inspectors

             282.         Declared companies and their inspection

             283.         Investigation of other companies

             284.         Inspector’s Reports

             285.         Investigation at company’s request and investigation of related corporation

             286.         Investigation of financial or other control of corporation

             287.         Procedure and powers of inspector

             288.         Costs of investigations

             289.         Report of inspector admissible in evidence

             290.         Suspension of proceedings in relation to declared company

             291.         Power to require information as to person interested in shares or debentures

             292.         Power to impose restrictions on shares or debentures

             293.         Inspectors appointed in other countries

             294.         Saving for attorneys and bankers

 

PART XXII
Public Offering of Securities and Prospectus

             295.         Definitions

             296.         Restrictions as to offers to the public

             297.         Offers not being offers to the public

             298.         Offer or subscription to public without a prospectus prohibited

             299.         Approval by stock exchange a requirement for letters of allocation

             300.         Offer for sale to the public without prospectus prohibited

             301.         Rights offers

             302.         Application form for shares to be attached to prospectus

             303.         Matters to be stated in prospectus

             304.         Consent of person named as director or expert

             305.         Contracts and translations thereof to be attached to prospectus

             306.         Where the issue is underwritten

             307.         Signing, date and date of issue, of prospectus

             308.         Registration of prospectus

             309.         Time limit for issue of prospectus

             310.         Advertising as to prospectus

             311.         Waiver of requirements of the Part void

             312.         Variation of contract mentioned in prospectus

             313.         Liability for untrue statement in prospectus

             314.         Liability of experts and others

             315.         Offences in respect of untrue statements in prospectus

             316.         No diminution of liability under any other law or the common law

             317.         Time limit as to allotment or acceptance

             318.         No allotment unless minimum subscription received

             319.         No allotment or acceptance if application form not attached to prospectus

             320.         Voidable allotment where sections 317, 318, or 319 contravened

             321.         Minimum interval before allotment or acceptance

             322.         Conditional allotment if prospectus states shares to be listed by stock exchange

             323.         Compulsory acquisition of minority in affected transaction

             324.         Prohibition of insider trading

             325.         Fraudulent inducement to invest

             326.         False statements and transactions

             327.         Misleading documents

             328.         Stock market manipulation

             329.         Disclosure of beneficial interest in securities

 

PART XXIII
Removal from the Register

             330.         Removal from the register

             331.         Grounds for removal from register

             332.         Notice of intention to remove where company has ceased to carry on business

             333.         Notice of intention to remove in other cases

             334.         Objection to removal from register

             335.         Duties of Registrar if objection received

             336.         Powers of court

             337.         Property of company removed from the register

             338.         Disclaimer of property by the State

             339.         Liability of directors, shareholders and others to continue

             340.         Liquidation of company removed from register of companies

             341.         Registrar may restore company to register of companies

             342.         Court may restore company to register of companies

             343.         Restoration to register

 

PART XXIV
External Companies

             344.         Application of this Part and meaning of "carrying on business"

             345.         Registration of external companies

             346.         Registered office and authorised agents

             347.         Return of alteration

             348.         Registrar’s certificate and validity of transactions

             349.         Financial Statements

             350.         Publication of name by company

             351.         Service of notices

             352.         Cessation of business in Botswana

             353.         Exemption in respect of transfer duty

             354.         Power of external company to hold land in Botswana

 

PART XXV
Transfer of Registration and Registration of Statutory Corporations as Companies

             355.         Registration and continuation of foreign company and statutory corporation

             356.         Foreign company shall be authorised to register

             357.         Foreign companies that cannot be registered

             358.         Registration

             359.         Effect of registration

             360.         Companies may transfer incorporation

             361.         Company to give public notice

             362.         Companies that cannot transfer incorporation

             363.         Removal from register

 

PART XXVI
Winding Up and Judicial Management

             364.         Modes of winding up

             365.         Jurisdiction of Master

             366.         Liability as contributories of present and past members

             367.         Nature of liability of contributory

             368.         When a company deemed unable to pay its debts

             369.         Circumstances in which company may be wound up by court

             370.         Petition for winding up a company

             371.         Powers of court on hearing petitions

             372.         Court may stay or restrain proceedings against company

             373.         Commencement of winding up by court

             374.         Court may adopt proceedings of voluntary winding up

             375.         Effect of winding up order

             376.         Action stayed and avoidance of certain attachments, executions, dispositions etc.

             377.         Transmission of winding up order to certain officers

             378.         Statement of company’s affairs to Master

             379.         Report by Master

             380.         Application of sections

             381.         Custody of property and appointment of liquidator

             382.         Meetings of creditors and contributories

             383.         Proof of claims

             384.         Powers of liquidator

             385.         Exercise of liquidator’s powers

             386.         Control by Master over liquidator

             387.         Bank account

             388.         Release of liquidator

             389.         Remuneration of liquidator

             390.         Court may stay or set aside winding up

             391.         Settlement of lists of contributories

             392.         Requiring delivery of property

             393.         Ordering payment of debt by contributory

             394.         Making call and ordering payment

             395.         Ordering payment into bank

             396.         Order on contributory conclusive evidence

             397.         Court to adjust rights of contributories

             398.         Inspection of books by creditors and contributories

             399.         Dissolution of company

             400.         Summoning persons suspected of having property of company

             401.         Ordering public examination of promoters, directors, etc.

             402.         Arrest of absconding contributory

             403.         Powers to be cumulative

             404.         Appeal from any order

             405.         Circumstances in which company may be wound up voluntarily

             406.         Notice of resolution for voluntary winding up

             407.         Commencement of voluntary winding up

             408.         Effect of voluntary winding up on business and status of company

             409.         Provision and effect of security

             410.         Application of sections

             411.         Appointment, powers and remuneration of liquidator

             412.         Power to fill vacancy in office of liquidator

             413.         Liquidator may accept shares, etc as consideration for sale of property of company

             414.         Application of sections 415 to 417

             415.         Meeting of creditors and appointment of liquidator

             416.         Powers of liquidator

             417.         Application of section 413

             418.         Application of sections 419 to 428

             419.         Consequences of voluntary winding up

             420.         Avoidance of transfer after commencement of winding up

             421.         Notice by liquidator of his appointment

             422.         Proof of claims

             423.         Arrangement when binding on company and creditors

             424.         Meetings of creditors and contributories

             425.         Power to apply to court

             426.         Duty of liquidator to call meetings of company and creditors

             427.         Notice to Registrar of confirmation of final account

             428.         Saving of rights of creditors and contributories

             429.         Application of sections 430 to 441

             430.         Summoning directors and others to attend meeting of creditors

             431.         Examination of directors and others at meeting of creditors

             432.         Application of certain provisions of the law on insolvency

             433.         Refusal to supply essential services prohibited

             434.         Voidable and undue preferences

             435.         Procedure for setting aside voidable transactions and charges

             436.         Other orders

             437.         Additional provisions relating to setting aside transactions and charges

             438.         Transactions at undervalue

             439.         Transactions for inadequate or excessive consideration with directors and certain other persons

             440.         Court may set aside certain securities and charges

             441.         Liability if proper accounting records not kept

             442.         Application of sections 443 to 469

             443.         Persons disqualified for appointment as liquidator

             444.         Power of court to declare person disqualified from being liquidator or to remove a liquidator

             445.         Liquidator to give security, and to choose a domicilium within Botswana

             446.         Co-liquidator

             447.         Title and acts of liquidators

             448.         General meetings to hear liquidator’s report

             449.         Books to be kept by liquidator and inspection thereof

             450.         Liquidator to lodge with Master accounts in winding up

             451.         Application to court to compel liquidator to lodge accounts

             452.         Inspection of accounts

             453.         Objections to account by interested parties

             454.         Confirmation of account

             455.         Distribution of estate

             456.         Liquidator to lodge receipts for dividends or pay dividends to Guardian’s Fund

             457.         Leave of absence or resignation of liquidator

             458.         Voting at meetings of creditors and contributories

             459.         Books of company to be evidence

             460.         Application of assets and costs of winding up

             461.         Payment of money deposited with Master and disposal of books and papers

             462.         Insolvency (Assetless Companies) Fund

             463.         Meetings to ascertain wishes of creditors and contributories

             464.         Power of court to declare dissolution of company void

             465.         Review by court

             466.         Special commissioners for taking evidence

             467.         Orders to be sent to Master and Registrar

             468.         Pooling of assets of related companies

             469.         Guidelines for orders

             470.         Application of certain provisions in winding up to judicial management

             471.         Placing company under judicial management

             472.         Judicial management order

             473.         Position of company’s auditor in judicial management

             474.         Duties of judicial manager

             475.         Voidable and undue preferences in case of judicial management

             476.         Application of assets during judicial management

             477.         Cancellation of judicial management order

             478.         Power of court to assess damages against delinquent promoters, directors etc.

             479.         Penalty for failure by directors and others to attend meetings

             480.         Offences consequent upon a winding-up or judicial management

             481.         Responsibility of directors and other persons for fraudulent conduct of business

             482.         Prosecution of delinquent directors and others

 

PART XXVII
Winding Up of Unregistered Associations

             483.         Unregistered association defined

             484.         Winding up of unregistered association

             485.         Contributories

             486.         Power of court to stay or restrain proceedings

             487.         Directions as to property in certain cases

             488.         Provisions of this Part cumulative

 

PART XXVIII
Dormant Companies

             489.         Meaning of dormant company

             490.         A company may be recorded in the Register as a dormant company

             491.         Exemptions available to dormant companies

 

PART XXIX
Offences and Penalties

             492.         Penalty for failure to comply with Act

             493.         Penalties in cases of failure by board or company to comply with Act

             494.         Additional powers of enforcement

             495.         Defences

             496.         False statement

             497.         Fraudulent use or destruction of property

             498.         Falsification of records

             499.         Carrying on business fraudulently

             500.         Persons prohibited from managing companies

             501.         Court may disqualify directors

             502.         Liability for contravening sections 500 and 501

             503.         Improper use of "Limited"

             504.         Failure to keep accounts

             505.         Other offences

             506.         Reports of offences and production and inspection of books

             507.         Inducement to be appointed liquidator

 

PART XXX
Miscellaneous

             508.         Service of documents on companies in legal proceedings

             509.         Service of other documents on companies

             510.         Service of documents on external companies in legal proceedings

             511.         Service of other documents on external companies

             512.         Service of documents on shareholders and creditors

             513.         Additional provisions relating to service

             514.         Directors’ certificates

             515.         Prohibition of large partnerships

             516.         Exemption for liability of acts or omissions of Government officers

             517.         Power to grant relief

             518.         Irregularities in proceedings

             519.         Translations of instruments

             520.         Costs in actions by limited companies

             521.         Arbitration

             522.         Fees

             523.         Rules of procedure

             524.         Amendment of Schedules

             525.         Fees paid to company

             526.         Repeal of Cap. 42:01

             527.         Transitional provisions

             528.         Regulations

 

                            First Schedule - Constitution of a Private Company Limited by Shares

                            Second Schedule - Proceedings at Meetings of Shareholders

                            Third Schedule - Sections of this Act that Confer Powers on Directors that cannot be Delegetated

                            Fourth Schedule - Proceedings of the Board of a Company

                            Fifth Schedule - Provisions relating to trustee for Debenture Holders and Trust Deed

                            Sixth Schedule

                            Seventh Schedule - Calls on Shares and Forfeiture of Shares

                            Eighth Schedule - Provisions of Act not applying to a Private Company acting under Unanimous Agreement

                            Ninth Schedule - Provisions of the Act which do not apply to Close Companies

                            Tenth Schedule - Matters to be stated in Prospectus in addition to those required in the Act

 

Proc. 71, 1959,
G.N. 43, 1959,
Law 8, 1961,
Law 30, 1962,
HMC Order 1, 1963,
G.N. 51, 1964,
Act 8, 1966,
L.N. 84, 1966,
Act 7, 1968,
Act 28, 1968,
S.I. 53, 1969,
Act 63, 1970,
Act 29, 1971,
Act 9, 1972,
Act 5, 1974,
Act 18, 1974,
S.I. 13, 1974,
S.I. 19, 1975,
Act 12, 1976,
S.I. 36, 1976,
Act 22, 1978,
Act 36, 1980,
Act 34, 1982,
S.I. 142, 1984,
Act 7, 1995,
S.I. 57, 1996,
Act 14, 2005,
S.I. 85, 2006,
Act 32, 2003,
S.I. 25, 2007,
Act 11, 2008,
Act 26, 2008.

An Act to update and consolidate the law relating to Companies.

[Date of commencement: 3rd July, 2007]

Part:I Preliminary (ss 1-18)


1.       Short title

            This Act may be cited as the Companies Act.

2.       Interpretation

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

            "accounting records" means the accounting records referred to in section 189;

            "accounting period" means, in relation to a company or another body corporate, the period in respect of which the financial statements of the company or other body corporate are made up, whether that period is a year or not;

            "annual meeting" means the meeting of a company required to be held by section 105;

            "annual report" means the report required to be made by section 212;

            "annual return" means the return required to be made by section 217 and includes any document attached to or intended to be read with the return;

            "arrangement" includes a re-organization of the share capital of a company by the consolidation of shares of different classes or by the division of shares into shares of different classes or by both these methods;

            "articles" -

     (a)     means the articles of association of an existing company; and

     (b)     includes, so far as they apply to the company, the provisions contained in Table A or Table C of the First Schedule to the repealed Act;

            "balance sheet date" has the meaning assigned to it in section 210;

            "Board" and "board of directors" have the meanings assigned to them in section 126;

            "banking company" means a bank licensed under the Banking Act;

            "benefits" in relation to a director -

     (a)     includes a fee, percentage or other payment, and the money value of any consideration, allowance or perquisite, given directly or indirectly, to him in relation to the management or direction of the affairs of the company or of a related company, whether as a director or otherwise; but

     (b)     does not include an amount given in payment or reimbursement of out-of-pocket expenses incurred for the benefit of the company;

            "book" includes any account, deed, writing or document, and any other record of information however compiled, recorded or stored;

            "borrowing company" means a company that is or will be under a liability to repay any money received or to be received by it in response to an invitation to the public to subscribe for or purchase debentures;

            "branch register" means -

     (a)     in relation to a company, a branch register of members referred to in section 84; and

     (b)     in relation to an external company, a branch register of shareholders required to be kept under Part XXIV;

            "carrying on business" for the purposes of Part XXIV has the meaning given in section 344;

            "certified" means -

     (a)     in relation to a copy or extract of a document, certified in the prescribed manner to be a true copy or extract of the document; and

     (b)     in relation to a translation of a document, certified in the prescribed manner to be a correct translation of the document into the English language;

            "charge" means -

     (a)     a mortgage or a mortgage bond;

     (b)     a deed of hypothecation;

     (c)     a notarial bond;

     (d)     a deposit of a share or debenture certificate made by way of charge;

     (e)     a pledge of shares or debentures;

     (f)      a pledge or cession over motor vehicles or plant and equipment;

     (g)     a cession of book debts;

     (h)     a charge on a ship or aircraft; and

     (i)      an agreement to give a charge;

            "class" in relation to a class of shares for the purposes of section 104 means a class of shares having attached to them the same rights, privileges, limitations and conditions;

            "close company" means a company which is registered as a close company in accordance with Part XIX;

            "company" means a company formed and registered under Part II or registered under Part XXIV or an existing company;

            "company limited by guarantee" means a company formed on the principle of having the liability of its members limited by the constitution to such amount as the members may respectively undertake to contribute to the assets of the company in the event of its being wound up;

            "company limited by shares" means a company formed on the principle of having the liability of its shareholders limited, by the constitution, to any amount unpaid on the shares respectively held by the shareholders;

            "constitution" means a document referred to in section 40;

            "contributory" means a person liable to contribute to the assets of a company in the event of its being wound up, and for the purposes of all proceedings for determining, and all proceedings prior to the final determination of, the persons who are deemed to be contributories, includes any person alleged to be a contributory under section 366;

            "corporation"-

     (a)     means a body corporate, including an external company or a foreign company or a partnership formed or existing in Botswana or elsewhere, but

     (b)     does not include-

           (i)       a statutory corporation,

          (ii)       a corporation sole,

          (iii)       a registered co-operative society,

         (iv)       a trade union, or

          (v)       a registered association;

            "court" means the High Court of Botswana and in relation to any offence against this Act, includes a Magistrate’s Court having jurisdiction in respect of that offence;

            "creditors’ voluntary winding up" has the meaning assigned to it by section 409(3);

            "date of incorporation" means the date of registration of a company;

            "debenture" means -

     (a)     a written acknowledgment of indebtedness issued by a company in respect of a loan made or to be made to it or to any other person or money deposited or to be deposited with the company or any other person or the existing indebtedness of the company or any other person whether constituting a charge on any of the assets of the company or not;

     (b)     includes -

           (i)       debenture stock,

          (ii)       convertible debenture,

          (iii)       a bond or an obligation,

         (iv)       loan stock,

          (v)       an unsecured note, or

         (vi)       any other instrument executed, authenticated, issued or created in consideration of such a loan or existing indebtedness; and

     (c)     does not include -

           (i)       a bill of exchange,

          (ii)       a promissory note,

          (iii)       a letter of credit,

         (iv)       an acknowledgment of indebtedness issued in the ordinary course of business for goods or services supplied,

          (v)       a policy of insurance, or

         (vi)       a deposit certificate, pass book or other similar document issued in connection with a deposit or current account at a banking company;

            "debenture trust deed" -

     (a)     means a deed executed by a company and a trustee for debenture holders in relation to the issue of debentures; and

     (b)     includes a supplemental document, resolution or scheme of arrangement modifying the terms of the deed and a deed substituted therefor;

            "debenture stock" means -

     (a)     a debenture by which a company or a trustee for debenture holders’ acknowledges that the holder of the stock is entitled to participate in the debt owing by the company under a debenture trust deed; and

     (b)     includes loan stock;

            "declared company" has the meaning assigned to it in section 282;

            "director" has the meaning set out in section 126;

            "distribution" in relation to a distribution by a company to a shareholder, means-

     (a)     the direct or indirect transfer of money or property, other than the company’s own shares, to or for the benefit of the shareholder; or

     (b)     the incurring of a debt to or for the benefit of the shareholder, in relation to shares held by that shareholder, and whether by means of a purchase of property, the redemption or other acquisition of shares, a distribution of indebtedness, or by some other means, but shall not include a distribution of assets to shareholders upon a winding up;

            "dividend" has the meaning set out in section 60;

            "document" means a document in any form, and includes-

     (a)     any writing on any material;

     (b)     information recorded or stored by means of a tape-recorder, computer, or other device, and material subsequently derived from information so recorded or stored;

     (c)     a book, graph, or drawing;

     (d)     a photograph, film, negative, tape, or other device in which one or more visual images are embodied so as to be capable (with or without the aid of equipment) of being reproduced;

            "dormant company" means a company recorded by the Registrar as being a dormant company under Part XXVIII;

            "entitled person", in relation to a company, means-

     (a)     a shareholder; and

     (b)     a person upon whom the constitution confers any of the rights and powers of a shareholder;

            "employee" means a person who has entered into a contract of employment for the hire of his labour;

            "executive director" means a director who is involved in the day to day management of the company;

            "executor" means a person who is appointed by the Master of the High Court to administer the estate of a deceased person;

            "exempt private company" has the meaning assigned to it in subsection (3) of this section;

            "existing company" means a body corporate registered or deemed to be registered under Part II of this Act or under the repealed Act;

            "expert" means a person holding himself out to be such whose professional or technical training gives authority to a statement made by him;

            "external company" means a body corporate, other than a corporation sole, which is registered or incorporated outside Botswana and that is required to be registered under Part XXIV;

            "external country" means any state, dominion, country, colony or territory other than Botswana;

            "external register" means the register of bodies corporate that are incorporated outside Botswana kept pursuant to Part XXIV;

            "financial statements" has the meaning assigned to it in section 211(1);

            "financial year" means, in relation to any body corporate, the period in respect of which any profit and loss account of the body corporate laid before it in general meeting is made up, whether that period is a year or not;

            "firm" means the association formed by persons who enter into a partnership not registered under this Act or the repealed Act;

            "foreign company" means a body of persons formed outside Botswana which-

     (a)     is a body corporate in its place of incorporation; or

     (b)     under the law of its place of formation may sue and be sued, or hold property in the name of an officer of the body duly appointed for that purpose;

            "functional currency" with reference to a company means the currency of the country in which the company operates;

            "group financial statements" has the meaning set out in section 211(3);

            "group of companies" or "group" has the meaning set out in section 207;

            "holding company" has the meaning assigned to it section 6(2);

            "inspector" means a qualified person in terms of section 281 who is appointed to carry out an investigation under Part XXI;

            "insurance company" means a company registered as an insurer under the Insurance Industry Act;

            "interested", in relation to a director, has the meaning set out in section 134;

            "interests register" means the register kept under sections 135 and 186 (1)(c);

            "International Financial Reporting Standards"-

     (a)     means the International Financial Reporting Standards issued by the International Accounting Standards Board; and

     (b)     includes-

           (i)       the interpretations of the International Reporting Standards issued by the International Financial Reporting Interpretation Committee;

          (ii)       International Accounting Standards still in force according to the International Accounting Standards Board; and

          (iii)       any other entity to which the responsibility for setting accounting standards has been assigned by the International Accounting Standards Board;

            "International Standards on Auditing" means the International Standards on Auditing issued by the International Federation of Accountants;

            "investment company with variable capital" means an investment company with variable capital which is licensed under the Collective Investment Undertakings Act;

            "Judicial Manager" means a person appointed in terms of section 472;

            "legal practitioner" means a person who is enrolled as a legal practitioner under the Legal Practitioners Act;

            "limited company" means a company limited by shares or by guarantee;

            "liquidator" means the person appointed under Part XXVI as liquidator of a company and includes any co-liquidators or provisional liquidators so appointed and also includes the Master acting as the liquidator;

            "listed company" means a company the shares or a class of shares of which have been admitted to quotation on the official list of a stock exchange;

            "major transaction" has the meaning assigned to it in section 128(2);

            "manager" means the principal executive of a company, whether or not that person is a director;

            "Master" means the Master of the High Court of Botswana or any person acting in that capacity;

            "member" means, in the case of a company limited by shares, a shareholder within the meaning of section 90 and in the case of a close company means a person who is designated as a member in the application for registration as a close company or who becomes a member on being admitted as a member, and in the case of a company limited by guarantee, means a person whose name is entered in or who is entitled to have his name entered in the register of members;

            "members voluntary winding up" has the meaning assigned to it by section 409(2);

            "memorandum" means the memorandum of association of an existing company;

            "nominee" means a person who, in exercising a right in relation to a share, debenture or other property, is entitled to exercise that right only in accordance with instructions given by some other person either directly or through the agency of one or more persons, and a person is the nominee of another person where he is entitled to exercise such a right only in accordance with instructions given by that other person;

            "non-executive director" means a director who has no involvement in the day to day management of the company;

            "offer" includes an invitation to make an offer;

            "officer", in relation to a company means a director, a secretary or manager;

            "one person company" means a private company in which the only shareholder is also the sole director of the company, and for the avoidance of doubt, a company of which the only shareholder is a corporation controlled by the person who is the sole director of the company is not a one person company;

            "ordinary resolution" has the meaning assigned to it in section 95(2);

            "parent company" means a company that has one or more subsidiaries;

            "partnership" means any partnership not registered as a company under this Act or the repealed Act;

            "person concerned" in relation to a company, includes -

     (a)     a person who is or has been employed by a corporation as a director, banker, auditor, attorney-at-law, notary or otherwise;

     (b)     a person who, or in relation to whom there are reasonable grounds for suspecting that he-

           (i)       has in his possession any property of the corporation,

          (ii)       is indebted to the corporation, or

          (iii)       is able to give information concerning the promotion, formation, management, dealing, affairs or property of the corporation;

            "pre-emptive rights" means the rights conferred on shareholders under section 52;

            "private company" is a company which is incorporated as a private company or is registered as a private company having the characteristics referred to in Part XVIII;

            "records" means the documents required to be kept by a company under section 186(1);

            "redeemable" has the meaning assigned to it in section 72;

            "register" or "register of companies" means the register required to be kept under section 11(1)(a);

            "register of external companies" means the register required to be kept under section 11(1)(b);

            "registered" means registered under this Act or the repealed Act;

            "registered co-operative society" has the meaning assigned to it in the Co-operative Societies Act;

            "registered office" has the meaning assigned to it in section 182;

            "Registrar" means the Registrar of Companies appointed in accordance with section 10;

            "related company" has the meaning assigned to it in section 6(7);

            "related corporation" has the meaning assigned to it in section 6(7);

            "relative", in relation to any person, means-

     (a)     any parent, spouse, child, brother or sister of that person;

     (b)     any parent, child, brother or sister of a spouse of that person; or

     (c)     a nominee or trustee for any of those persons;

            "relevant interest" has the meaning assigned to it in section 141;

            "repealed Act" means the Companies Act repealed under section 526;

            "resolution in lieu of meeting" means a resolution signed by all members or shareholders in accordance with section 107;

            "secure electronic" signature means an electronic signature that results from the use of an electronic documents system;

            "secured creditor", in relation to a company, means a person entitled to a charge on or over property owned by that company;

            "securities" has the meaning assigned to it in the Botswana Stock Exchange Act;

            "share" means a share in the share capital of a company;

            "shareholder" has the meaning assigned to it in section 90;

            "share register" means the share register required to be kept under section 83;

            "signed" means subscribed by a person under his hand with his signature, and includes that person’s secure electronic signature;

            "solvency test" has the meaning assigned to it in section 4;

            "special meeting" means a meeting called in accordance with section 106;

            "special resolution" means a resolution approved by a majority of 75 per cent or, if a higher majority is required by the constitution, that higher majority, of the votes of those shareholders entitled to vote and voting on a question;

            "spouse", in relation to a person, means a person to whom that person is married;

            "stated capital" has the meaning assigned to it in section 5;

            "statutory corporation" means a body corporate established under an Act of Parliament;

            "subsidiary" has the meaning assigned to it in section 6;

            "Stock Exchange" means a stock exchange established under the Botswana Stock Exchange Act or any other stock exchange outside Botswana which is regulated by the laws of the jurisdiction in which it is situated and is recognized by the Minister for the purposes of this Act;

            "stock market" means such primary and secondary or other stock market as may be established under the Botswana Stock Exchange Act or may be established by any other Stock Exchange recognized by the Minister for the purposes of this Act;

            "surplus assets" means the assets of a company remaining after the payment of creditors’ claims and available for distribution in accordance with section 455 prior to its removal from the register of companies;

            "trade union" has the same meaning as in the Trade Unions and Employers Organizations Act;

            "trustee for debenture holders" means a person designated as such in a debenture trust deed;

            "unable to pay its debts", in relation to a company, has the meaning assigned to it in section 368 and, in relation to an unregistered association, has the meaning assigned to it by section 484(4)(b);

            "unanimous resolution" means a resolution which has the assent of every shareholder entitled to vote on the matter which is the subject of the resolution and either-

     (a)     given by voting at a meeting to which notice to propose the resolution has been duly given and of which the minutes of the meeting duly record that the resolution was carried unanimously; or

     (b)     where the resolution is signed by every shareholder or his agent duly appointed in writing signed by him, and such resolution may consist of one or more documents in similar form (including letters, telegrams, cables, facsimiles, telex messages, electronic mail or similar forms of communication) in each case signed by the shareholder concerned or his agent on his behalf duly authorised in writing signed by him;

            "unregistered association" has the meaning assigned to it in section 483;

            "virtually wholly owned subsidiary" has the meaning given by section 6(6);

            "wholly owned subsidiary" has the meaning assigned to it in section 6(5);

            "winding-up resolution" means a resolution passed for the winding up of a company;

            "winding up order" means any order whereby a company is placed under liquidation or provisional liquidation when such order for provisional liquidation has not been set aside;

            "working day" means a day of the week other than Saturday, Sunday or a public holiday;

            "writing" includes-

     (a)     the recording of words in a permanent or legible form; and

     (b)     the display of words by any form of electronic or other means of communication in a manner that enables the words to be readily stored in a permanent form and with or without the aid of any equipment to be retrieved and read;

            "year" means a calendar year.

            (2) A reference in this Act to an address means-

     (a)     in relation to an individual, the full address of the place where that person usually lives;

     (b)     in relation to a company its registered office;

     (c)     in relation to any other body corporate, its registered office or, if it does not have a registered office, its principal place of business.

            (3) A company shall be an "exempt private company" where it is a private company which, in respect of its last preceding financial year, satisfied all of the following criteria-

     (a)     the total assets of the company are less than such amounts as may be prescribed in Regulations made under this Act;

     (b)     the annual turnover of the company is less than such amounts as may be prescribed in Regulations made under this Act; and

     (c)     none of the shareholders in such company is a company.

            (4) A private company which is not an exempt private company is a non-exempt private company.

            (5) In determining the "total assets" of the company for the purposes of subsection (3), regard shall be had to the total assets of the company as shown in the most recent financial statements of the company prepared on the basis of generally accepted accounting principles.

            (6) In the application of subsections (3), (4) and (5) to any period which is a financial year of a company but not in fact a year, the maximum figure for turnover in subsection (3)(ii) shall be proportionately adjusted.

            (7) A private company which is incorporated after the commencement of this Act shall qualify as an exempt private company in respect of its first financial year if it satisfies all the relevant qualifying criteria in respect of that year.

3.       Public notice

            Where, pursuant to this Act, public notice is required to be given of any matter affecting a company, that notice shall be given by publishing notice of the matter-

     (a)     in at least one issue of the Government Gazette; and

     (b)     in at least one issue of a newspaper with wide circulation in Botswana.

4.       Meaning of "solvency test"

            (1) For the purposes of this Act, a company satisfies the solvency test if-

     (a)     the company is able to pay its debts as they become due in the normal course of business; and

     (b)     the value of the company’s assets is greater than the sum of-

           (i)       the value of its liabilities, and

          (ii)       the company’s stated capital.

            (2) In determining for the purposes of this Act (other than sections 224 and 225 which relate to amalgamations) whether the value of a company’s assets is greater than the value of its liabilities, the Board may take into account-

     (a)     in the case of a public company or a non-exempt private company, the most recent financial statements of the company prepared in accordance with International Accounting Standards;

     (b)     in the case of an exempt private company, the most recent financial statements prepared on the basis of generally accepted accounting principles that are applicable to private or close companies; and

     (c)     a valuation of assets or estimates of liabilities that are reasonable in the circumstances.

            (3) Without limiting sections 224 and 225, in determining, for the purposes of those sections whether the value of the amalgamated company’s assets will be greater than the sum of the value of its liabilities and its stated capital, the directors of each amalgamating company-

     (a)     shall have regard to-

           (i)       financial statements that are prepared in accordance with International Accounting Standards or generally accepted accounting principles that are prepared as if the amalgamation had become effective, and

          (ii)       all other circumstances that the directors know or ought to know would affect, or may affect, the value of the amalgamated company’s assets and the value of its liabilities;

     (b)     may rely on valuations of assets or estimates of liabilities that are reasonable in the circumstances.

5.       Stated capital

            (1) Subject to section 59, stated capital in relation to a company means the total of all amounts received by the company or due and payable to the company-

     (a)     in respect of the issue of the shares; and

     (b)     in respect of calls on the shares.

            (2) Where a share is issued for consideration other than cash, the Board shall, in accordance with section 53, determine the cash value of that consideration for the purposes of subsection (1).

            (3) Where a share has attached to it an obligation other than an obligation to pay calls, and that obligation is performed by the shareholder-

     (a)     the Board shall determine the cash value, if any, of that performance; and

     (b)     the cash value of that performance shall be deemed to be a call which has been paid on the share for the purposes of subsection (1).

            (4) A company shall not reduce its stated capital except in the manner provided by this Act.

6.       Meaning of "holding company" and "subsidiary"

            (1) In this section and in sections 7 and 8, the expression "company" includes a corporation.

            (2) For the purposes of this Act, a company is a subsidiary of another company if -

     (a)     that other company -

           (i)       controls the composition of the Board of the company,

          (ii)       is in a position to exercise, or control the exercise of, more than one-half the maximum number of votes that can be exercised at a meeting of the company,

          (iii)       holds more than one-half of the issued shares of the company, other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital, or

         (iv)       is entitled to receive more than one-half of every dividend paid on shares issued by the company, other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital; or

     (b)     the company is a subsidiary of a company that is a subsidiary of another company.

            (3) For the purposes of this Act, a company is another company’s holding company if that other company is its subsidiary.

            (4) For the purposes of this Act -

     (a)     a company is the "ultimate holding company" of another company if -

           (i)       the other company is a subsidiary of the first mentioned company, and

          (ii)       the first mentioned company is not itself a subsidiary of any company;

     (b)     "the ultimate holding company in Botswana", in relation to a company incorporated in Botswana, means a holding company which is not a subsidiary of a company incorporated in Botswana.

            (5) A company shall be deemed to be the wholly owned subsidiary of another corporation if the members of the company do not include any person apart from-

     (a)     that other corporation;

     (b)     a nominee of that other corporation;

     (c)     a subsidiary of that other corporation being a subsidiary the members of which do not include any person apart from that other corporation or a nominee of that other corporation; or

     (d)     a nominee of such a subsidiary.

            (6) A company shall be deemed to be the virtually wholly owned subsidiary of another corporation (known as "the parent") if the parent owns 90 per cent or more of the voting power in that company.

            (7) Where a body corporate is -

     (a)     a holding company of another body corporate;

     (b)     a subsidiary of another body corporate; or

     (c)     a subsidiary of a holding company of another body corporate, the first mentioned body and the other body are related to each other and are "related corporations", and "related company" has a corresponding meaning where the body in question is a company.

            (8) For the purposes of subsection (7), a company within the meaning of section 2 of the repealed Act is related to another company if, were it a company within the meaning of subsection (1), it would be related to that other company.

7.       Definition of "control"

            For the purposes of section 6, without limiting the circumstances in which the composition of a company’s Board is to be taken to be controlled by another company, the composition of the Board is to be taken to be so controlled if the other company, by exercising a power exercisable (whether with or without the consent or concurrence of any other person) by it, can appoint or remove all the directors of the company, or such number of directors as together hold a majority of the voting rights at meetings of the Board of the company, and for this purpose, the other company is to be taken as having power to make such an appointment if-

     (a)     a person cannot be appointed as a director of the company without the exercise by the other company of such a power in the person’s favour; or

     (b)     a person’s appointment as a director of the company follows necessarily from the person being a director or other officer of the other company.

8.       Certain matters to be disregarded

            In determining whether a company is a subsidiary of another company-

     (a)     shares held or a power exercisable by that other company only as a trustee are not to be treated as held or exercisable by it;

     (b)     subject to paragraphs (c) and (d) of this section, shares held or a power exercisable-

           (i)       by a person as a nominee for that other company, except where that other company is concerned only as a trustee, or

          (ii)       by, or by a nominee for, a subsidiary of that other company, not being a subsidiary which is concerned only as a trustee-are to be treated as held or exercisable by that other company;

     (c)     shares held or a power exercisable by a person under the provisions of debentures of the company or of a debenture trust deed shall be disregarded; and

     (d)     shares held or a power exercisable by, or by a nominee for, that other company or its subsidiary (not being held or exercisable in the manner described in paragraph (c) of this section) are not to be treated as held or exercisable by that other company if-

           (i)       the ordinary business of that other company or its subsidiary, as the case may be, includes the lending of money, and

          (ii)       the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.

9.       Act binds the State

            This Act binds the State.

10.     The Registrar

            (1) There shall be a Registrar of Companies who shall be a public officer, and who shall, subject to the control of the Minister, be responsible for the administration of this Act and who shall perform such functions and exercise such powers as may be conferred on him by this Act or any other enactment.

            (2) The Registrar shall be appointed in accordance with the provisions of the Public Service Act.

            (3) There shall also be a Deputy Registrar of Companies who shall be a public officer and who shall likewise be appointed in accordance with the provisions of the Public Service Act, and who shall have the power to do any act or thing which may be lawfully done under this Act or any other enactment by the Registrar.

            (4) The seal of the office of the Registrar shall be such device as may be determined by the Minister and shall be kept by the Registrar to be affixed on all documents, including duplicates, pertaining to the registration of a company under this Act.

            (5) Without derogating from the generality of the provisions of subsection (1), the Registrar shall-

     (a)     take charge of, and be responsible for the safe custody of, all documents lodged with the Registrar under this Act;

     (b)     examine and register all returns and other documents lodged with the Registrar; and

     (c)     exercise any other powers conferred on the Registrar by this or any other Act or which the Minister may by Regulations prescribe.

11.     Registers

            (1) The Registrar shall ensure the maintenance of a register of -

     (a)     companies registered or deemed to be registered under this Act;

     (b)     external companies registered or deemed to be registered under Part XXIV; and

     (c)     dormant companies, returns for which have not be made for a period of five years.

            (2) The register of companies and the register of external companies may be kept in such manner as the Registrar considers appropriate including, either wholly or partly, by means of a device or facility-

     (a)     that records or stores information electronically or by other means; and

     (b)     that permits the information so recorded or stored to be readily inspected or reproduced in usable form.

            (3) The Minister may make regulations for the purposes of this section-

     (a)     authorising the destruction of any documents which have been recorded or stored electronically or by other means;

     (b)     providing that any document stored and reproduced electronically or by other means by the Registrar shall for all purposes be treated as if it were the original document, notwithstanding any law to the contrary;

     (c)     otherwise giving full effect to, and ensuring the efficient operation of, any device or facility of the kind referred to in subsection (2).

12.     Registration of documents

            (1) On receipt of a document for registration under this Act, the Registrar shall-

     (a)     subject to subsection (2), register the document in the register of companies or the register of external companies, as the case may be; and

     (b)     give written advice of the registration to the person from whom the document was received.

            (2) If a document received by the Registrar for registration under this Act-

     (a)     is not in the prescribed form, if any;

     (b)     does not comply with this Act or regulations made under this Act;

     (c)     is not printed or typewritten;

     (d)     where the register of companies or the register of external companies is kept wholly or partly by means of a device or facility referred to in section 11(2), the document is not received by the Registrar in a form that enables particulars to be entered directly by electronic or other means in the device or facility;

     (e)     has not been properly completed;

     (f)      contains matter contrary to law;

     (g)     contains any error, alteration or erasure; or

     (h)     contains material that is not clearly legible, the Registrar may refuse to register the document.

            (3) Where the Registrar refuses to register the document under subsection (2) he shall request either-

     (a)     that the document be appropriately amended or completed and submitted for registration again; or

     (b)     that a fresh document be submitted in its place.

            (4) For the purposes of this Act, a document is registered when-

     (a)     the document itself is constituted part of the register of companies or the register of external companies; or

     (b)     particulars of the document are entered in any device or facility referred to in section 11(2).

            (5) Neither registration nor refusal of registration of a document, by the Registrar, affects or creates a presumption as to, the validity or invalidity of the document or the correctness or otherwise of the information contained in it.

13.     Inspection and evidence of registers

            (1) A person may, on payment of the prescribed fee, inspect-

     (a)     any document that constitutes part of the register of companies or the register of external companies;

     (b)     particulars of any registered document that have been entered on any device or facility referred to in section 11(2); or

     (c)     any registered document particulars of which have been entered in any such device or facility,

during the hours when the office of the Registrar is open to the public for the transaction of business on a working day.

            (2) A person may, on payment of the prescribed fee require the Registrar to give or certify-

     (a)     a certificate of incorporation of a company;

     (b)     a copy of, or extract from, a document that constitutes part of the register of companies or the register of external companies;

     (c)     particulars of any registered document that have been entered in any device or facility referred to in section 11(2); or

     (d)     a copy of, or extract from, a registered document particulars of which have been entered in any such device or facility.

            (3) Nothing in subsections (1) and (2) shall apply to-

     (a)     any report by an inspector appointed under Part XXI, unless the Registrar directs otherwise;

     (b)     a report filed by a liquidator or judicial manager of a company unless the person applying to inspect the document or requiring a copy or extract of it is a shareholder or creditor of that company;

            (4) A process to compel the production of-

     (a)     a registered document kept by the Registrar; or

     (b)     evidence of the entry of particulars of a registered document in any device or facility referred to in section 11(2), shall not issue from the court without the leave of the court and, a statement shall be attached stating that it is issued with the leave of the court.

            (5) A copy of, or extract from, a registered document-

     (a)     that constitutes part of the register of companies or the register of external companies; or

     (b)     particulars of which have been entered in any device or facility referred to in section 11(2),

certified to be a true copy or extract by the Registrar is admissible in evidence in legal proceedings to the same extent as the original document.

            (6) An extract certified by the Registrar as containing particulars of a registered document that have been entered in any device or facility referred to in section 11(2) is, in the absence of proof to the contrary, conclusive evidence of the entry of those particulars.

14.     Registrar’s powers of inspection

            (1) For the purpose of ascertaining whether a company or an officer is complying with this Act or any subsidiary enactment made under this Act, the Registrar may, on giving 72 hours written notice to the company, call for the production of or inspect any book required to be kept by the company.

            (2) A person shall not obstruct or hinder the Registrar or a person authorised by the Registrar while exercising a power conferred by subsection (1).

            (3) Any person who fails to comply with subsection (1) shall be guilty of an offence and liable to the penalty set out in section 492(2).

            (4) In this section "Company" includes an external company.

15.     Appeals from Registrar’s decisions

            (1) A person who is aggrieved by an act or decision of the Registrar under this Act may appeal to the court within 15 working days after the date of notification of the act or decision, or within such further time as the court may allow.

            (2) On hearing the appeal, the court may approve the Registrar’s act or decision or may give such directions or make such determination in the matter as the court considers appropriate.

16.     Enforcement of duty on companies to make return to Registrar

            (1) Where a person makes default in complying with a requirement of this Act relating to the filing of a document or the giving of a notice and still fails to make good the default within 14 days from the service on the person of a notice requiring it to be done, the court may, on the application of the Registrar or the Master or, if the person making default is a company on the application of a member or creditor, make an order directing the person, or if the person making default is a corporation, the corporation or any officer, to make good the default within such time as may be specified in the order.

            (2) Any order under subsection (1) may provide that all costs of, and incidental to, the application and the order thereon shall be borne by the company or by any officers of the company responsible for the default.

            (3) Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties on a company or its officers in respect of any such default.

17.     Lost documents

            (1) Where a constitution or any other document relating to a company required to be filed has been lost or destroyed, the company may apply to the Registrar for leave to file a copy of the document.

            (2) On receipt of an application under subsection (1), the Registrar may direct that a notice in that behalf shall be given to such person and in such manner as the Registrar considers appropriate.

            (3) The Registrar may, on being satisfied-

     (a)     that the original document has been lost or destroyed,

     (b)     of the date of the filing of the original document, and

     (c)     that the copy of the document produced to him is a correct copy, certify on that copy that the Registrar is so satisfied and direct that the copy be filed in the same manner as the original document.

            (4) The copy shall, on being filed, from such date as is mentioned in the certificate as the date of the filing of the original, have the same force and effect as the original.

18.     Extension of time

            Where a person is required by this Act to do any act within a specified time, he may be granted an extension of time within which the act is required to be done by the-

     (a)     Registrar, for a period not exceeding 60 days; and

     (b)     court, upon expiry of the 60 days extension under paragraph (a), in accordance with section 518(4) on good cause being shown.


 

 

 


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