A.

479

COMPANIES (AMENDMENT) ACT, 2018

No. 22 of 2018

ARRANGEMENT OF SECTIONS
SECTION
1. Short title and commencement
2. Amendment of section 2 of Cap. 42:01
3. Amendment of section 3 of the Act
4. Amendment of section 11 of the Act
5. Amendment of section 13 of the Act
6. Amendment of section 21 of the Act
7. Insertion of section 31A in the Act
8. Amendment of section 34 of the Act
9. Amendment of section 37 of the Act
10. Amendment of section 48 of the Act
11. Amendment of section 50 of the Act
12. Amendment of section 55 of the Act
13. Amendment of section 59 of the Act
14. Amendment of section 66 of the Act
15. Amendment of section 81 of the Act
16. Substitution of section 145 in the Act
17. Amendment of section 162 of the Act
18. Amendment of section 191 of the Act
19. Substitution of section 217 in the Act
20. Amendment of section 248 of the Act
21. Amendment of section 250 of the Act
22. Substitution of section 252 in the Act
23. Amendment of section 273 of the Act
24. Amendment of section 277 of the Act
25. Amendment of section 278 of the Act
26. Amendment of section 279 of the Act
27. Amendment of section 280 of the Act
28. Amendment of section 331 of the Act
29. Amendment of section 333 of the Act
30. Amendment of section 341 of the Act
31. Amendment of section 345 of the Act
32. Amendment of section 347 of the Act
33. Deletion of Part XXVIII of the Act
34. Amendment of section 493 of the Act
35. Amendment of section 528 of the Act
An Act to amend the Companies Act.
Date of Assent: 29.06.2018
Date of Commencement: ON NOTICE
ENACTED by the Parliament of Botswana.
A.480

Short title and 1. This Act may be cited as the Companies (Amendment) Act, 2018,
commencement
and shall come into operation on such date as the Minister may, by
Order published in the Gazette, appoint.
Amendment of 2. The Companies Act (in this Act referred to as “the Act”) is
section 2 of
Cap. 42:01 amended in section 2 by —
(a) inserting in its correct alphabetical order, the following new
definition —
“beneficial owner” means a natural person who, directly or indirectly
through any contract, arrangement, understanding,
relationship or otherwise, is the ultimate beneficiary
of a share or other securities in a company;”; and
(b) deleting the definition of “dormant company”.
Amendment of 3. Section 3 of the Act is amended by substituting for that section,
section 3 of
the Act the following new section —

“Public notice 3. Where, pursuant to this Act, a public notice is
required to be given of any matter affecting
a company, that notice shall be given by
publishing notice of the matter in —
(a) the Gazette;
(b) a newspaper with wide circulation in Botswana; or
(c) any other medium in Botswana, as the Registrar
may consider necessary.”.
Amendment of 4. Section 11 of the Act is amended —
section 11 of
the Act (a) in subsection (1), by deleting subsection (c);
(b) by inserting immediately after subsection (1), the following new
subsections —
“(1A) The Registrar may request in writing, from any person,
any information as the Registrar considers necessary to enable him
to carry out the maintenance of the register.
(1B) A request for information under subsection (1A) shall —
(a) specify the nature and type of information sought by the
Registrar in sufficient detail as shall enable the person
to identify and provide the information; and
(b) specify the format and period within which the required
information is to be submitted.
(1C) Upon receipt of a request for information, the person to
whom the request is made shall, at the Registrar’s option as set out in
the request and within the time specified in the request, give the
Registrar the information so requested or provide a copy of
such information.”.
Amendment of 5. Section 13 of the Act is amended —
section 13 of
the Act (a) by substituting for subsection (1), the following new subsection —
“(1) A person may inspect —
(a) any document that constitutes part of the register of
companies or the register of external companies;
 A.481

(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 on any device or facility referred to in section
11(2).”; and
(b) by deleting the words “, on payment of the prescribed fee”
appearing in subsection (2).
6. Section 21 of the Act is amended — Amendment of
section 21 of
(a) in subsection (1) (d), by substituting for — the Act
(i) subparagraph (i), the following new subparagraph —
“(i) in the case of a company having a share capital, a
document in the prescribed form, signed by every
person named as a shareholder or by an agent of the
shareholder authorised, in writing, containing the person’s
consent to be a shareholder and to taking the number of
shares specified in the document,”, and
(ii) subparagraph (iii), the following new subparagraph —
“(iii) in the case of a company limited by guarantee, a
document signed by each person named as a member
or by an agent of the member authorised in writing,
containing that person’s consent to be a member, or”;
(b) by deleting subsections (1) (e), (3), (4) and (5); and
(c) in subsection (2), by substituting for paragraph (c) the following
new paragraph —
“(c) the full name and residential address of –
(i) every shareholder or member of the proposed company,
and in the case of a company limited by shares, the
number of shares to be issued to every shareholder and
the amount to be paid or other consideration to be
provided by that shareholder for the issue of those same
shares, and
(ii) beneficial owners of the company;”; and
(d) inserting immediately after subsection (2), the following new
subsection —
“(2A) Where a company fails to comply with subsection (2) —
(a) the company shall be guilty of an offence and liable to a
penalty set out in section 492 (4); and
(b) every director of the company shall be guilty of an offence
and liable to a fine set out in section 492 (2).”.
7. The Act is amended by inserting immediately after section 31, the Insertion of
section 31A
following new section — in the Act
“Delegation of 31A. (1) The Minister may, in writing, delegate any of his
power to
dispense with
powers under section 31 to the Registrar.
“Limited” (2) Notwithstanding any delegation under subsection (1),
the Minister may —
A.482

(a) exercise any powers delegated by him and may from

time to time cancel or vary such delegation; and
(b) vary or set aside any decision made by Registrar
in the exercise of such delegated powers.
(3) A power delegated under this section may, where the
instrument of delegation so provides, be further delegated.”.
Amendment of 8. Section 34 of the Act is amended —
section 34 of
the Act
(a) in subsection (1), by —
(i) deleting paragraph (b), and
(ii) substituting for paragraph (c), the following new
paragraph —
“(c) subject to the constitution of the company, be made
by a director of the company or any other person
authorized by the board of the company.”; and
(b) by substituting for subsection (3), the following new subsection —
“(3) The Registrar shall not enter a change of name in the
register until 14 days after the Registrar has issued a
public notice of the application to change the name
of the company.”.
Amendment of 9. Section 37 of the Act is amended by substituting for that section,
section 37 of
the Act
the following new section —

“No requirement 37. A company shall not be required to have a constitution,
for company to

have constitution
unless the company is a company limited by guarantee.”.
Amendment of 10. Section 48 of the Act is amended by —
section 48 of
the Act (a) substituting for subsection (3A), the following new subsection —
“(3A) A company that transfers a share in the company shall, in
such form as may be prescribed and within 20 days from the date
the transfer is made, notify the Registrar of the transfer.”; and
(b) inserting immediately after subsection (3A), the following new
subsection —
“(3B) Where a company fails to comply with subsection (3A) —
(a) the company shall be guilty of an offence and liable to a
penalty set out in section 492 (1); and
(b) every director of the company shall be guilty of an
offence and liable to a fine set out in section 492 (2).”.
Amendment of 11. Section 50 of the Act is amended in subsection (4), by substituting
section 50 of
the Act for paragraph (a), the following new paragraph —
“(a) give notice to the Registrar, in the prescribed form, of the
number of shares issued;”.
Amendment of
section 55 of 12. Section 55 of the Act is amended by substituting for subsection
the Act (1), the following new subsection —
 A.483

“(1) Where a call is made on a share or any other obligation

attached to a share is performed by the shareholder, the company
shall, within 10 working days of the call being made, give notice,
in the prescribed form, to the Registrar of the amount of the stated
capital of the company following the making of the call.”.
13. Section 59 of the Act is amended by — Amendment of
section 59 of
(a) deleting subsection (6); and the Act
(b) deleting the words “or subsection (6)” appearing in subsection (7).
14. Section 66 of the Act is amended by — Amendment of
(a) substituting for subsection (5), the following new subsection — section 66 of
the Act
“(5) Save as provided under subsections (10) and (11), a
company that proposes to acquire shares that are issued by it shall
deliver or mail a copy of the written offer or circular to each
shareholder on record as at the date of the offer, in such manner
as may be provided in the constitution of the company for sending
any notice of meeting to shareholders —
(a) stating the number of its issued shares which the company
proposes to acquire;
(b) specifying the terms and reasons for the offer; and
(c) providing the disclosure required by subsection (12).”; and
(b) substituting for subsection (8), the following new subsection —
“(8) A company that acquires shares issued by it shall, in such
form as may be prescribed and within 30 days from the date the
shares are acquired, notify the Registrar of the date and number
of shares that it has acquired.”.
15. Section 81 of the Act is amended by inserting immediately after Amendment of
section 81 of
subsection (4), the following new subsection — the Act
“(4A) A company that transfers a share in the company shall, in
such form as may be prescribed and within 20 days from the date
the transfer is made, notify the Registrar of the transfer.”.
16. Section 145 of the Act is amended by substituting for that section, Substitution of
section 145 in
the following new section — the Act
“Number of 145.   A company shall have at least —
directors
(a) two directors, if it is a public company;
(b) one director, if it is a private company other
than a close company; or
(c) one director, if it is a foreign company or a
company limited by guarantee, ordinarily
resident in Botswana.”.
17. Section 162 of the Act is amended in — Amendment of
section 162 of
(a) subsection (3), by substituting for the words “Botswana Institute of the Act
Accountants” appearing in paragraph (a), the words “Botswana
Institute of Chartered Accountants”; and
(b) subsection (4), by inserting immediately after the word “secretaries”,
the words “which shall consist of persons qualified under subsection
(3) (a)”.
A.484

Amendment of 18. Section 191 of the Act is amended by inserting immediately after
section 191
of the Act subsection (1), the following new subsection —
“(1A) A public company and a non-exempt private company
shall, where it appoints an auditor under subsection (1) and within
20 days from the date the appointment is made, deliver to the
Registrar, in such form as may be prescribed, a notice of the
appointment of the auditor.”.
Substitution of 19. Section 217 of the Act is amended by substituting for that section,
section 217 in
the Act the following new section —
“Annual 217. (1) A company shall, in such form as may be
return
prescribed, at least once in every year, deliver an
annual return to the Registrar.
(2) Notwithstanding subsection (1), a company may
not deliver an annual return in the same year of its
incorporation.
(3) A company shall, in terms of this section, deliver
its first annual return to the Registrar in the following
year, on the month of its registration and such month
shall be deemed to be the month in which the annual
return of the company becomes due to be delivered to
the Registrar, for the succeeding years.
(4) Notwithstanding subsection (3), a company
incorporated in —
(a) January of a particular year, shall deliver
its annual return in February of the
succeeding year; and
(b) December of a particular year, shall deliver
its an n u al return in November of the
succeeding year.
(5) A director or secretary of a company who fails to
comply with the provisions of subsection (1), commits
an offence and is liable to the penalty set out in section
493 (2) of this Act.
(6) A company which fails to comply with the
provisions of subsections (1) and (3), shall immediately
be removed from the register.”.
Amendment of 20. Section 248 of the Act is amended by substituting for subsection
section 248
of the Act (4), the following new subsection —
“(4)   The application shall state, in addition to the matters referred
to in section 21 —
(a) the size, expressed as a percentage, of each member’s
interest in the company; and
(b) the name and address of the person or firm which has
consented in writing to be appointed as accounting officer
of the close company pursuant to section 273.”.
 A.485

21. Section 250 of the Act is amended by substituting for that section, Substitution of
section 250
the following new section — of the Act
“Contributions 250. (1) Every person who is to become a member
by members
of a close company upon its registration, shall make
to the company an initial contribution of money,
property, or services rendered in connection with and
for the purposes of the formation and incorporation of
the company.
(2) The amount or value of the members’ contributions,
or of the contribution of any one or more members,
may from time to time by agreement among all the
members —
(a) be increased by additional contributions of
money or property to the close company by
existing members or, in terms of section 255
(1) (b), by a person becoming a member of a
registered corporation; or
(b) be reduced, provided that a reduction by way
of a repayment to any member shall comply
with the provisions of section 258 and 259.
(3) Money or property referred to in subsection (2) (a)
shall, in order to vest ownership thereof in the close
company, be paid, delivered or transferred, as the case
may be, to the company within a period of 90 days —
(a) after the date of registration of the company; or
(b) after the date of the registration of any notice
of additional contribution referred to in
section 261.
(4) An undertaking by a member to make an initial or
an additional contribution to a corporation shall be
enforceable by the close company in legal proceedings.”.
22. Section 252 of the Act is amended by substituting for that section, Substitution of
section 252 in
the following new section — the Act

“Deregistration of 252. (1) The Registrar shall, subject to the provisions
close companies of this section, deregister a close company —

(a) if the company has ceased to carry on business
or is not in operation;
(b) if the company has been put into liquidation and —
(i) no liquidator is acting, or
(ii) the notice referred to in section 427 has
not been given to the Registrar within six
months after the liquidation of the company
is completed;
(c) if a request, in such form as may be prescribed,
is sent or delivered to the Registrar that the
company be deregistered on any of the grounds
specified in subsection (2) by —
A.486

(i) a member authorised to make the request by a special

resolution of members entitled to vote and voting on
the question,
(ii) a member or any other person, if the constitution of
the company so requires or permits, or
(iii) the Master;
(d) if a liquidator notifies the Master in terms of section 426 (3)
that no quorum was present at a meeting called to confirm
the account; or
(e) if the company has failed to comply with the requirements
of this Act.
(2) A request to deregister a company under subsection (1) (c)
shall be —
(a) made on the grounds that the company —
(i) has ceased to carry on business, has discharged in full its
liabilities to all its known creditors, and has distributed its
surplus assets in accordance with its constitution and
this Act; or
(ii) after paying its debts in full or in part has no surplus
assets, and no creditor has applied to the court on
grounds under section 369 for an order putting the
company into liquidation; and
(b) accompanied by a written notice from the Commissioner of
Taxes stating that the Commissioner has no objection to the
company being deregistered.
(3) The Registrar shall deregister a company under subsection
(1) (a), if —
(a) the Registrar has complied with section 332;
(b) the company has not satisfied the Registrar that it is carrying
on business or that reasons exist for the company not to
continue in existence; and
(c) the Registrar —
(i) is satisfied that no person has objected to the
deregistration of the company under section 334, or
(ii) has received an objection to the deregistration and has
complied with section 335.
(4) Where the Registrar decides to deregister a company under
subsection (1) (b), (c), (d) or (e), the Registrar shall give notice
to the company under section 332 of this Act and shall deregister
the company upon satisfying himself that —
(a) no person has objected to the deregistration under section
334; and
(b) where an objection to the deregistration has been received,
that the provisions of section 335 have been complied with:
  Provided that de-registration of a company under
subsection (1) (e) on the grounds in section 217 (6), shall not
require such notice.
 A.487

(5) Subject to the provisions of this section, the

deregistration of a close company shall not affect any
liability of a member of the company to the company
or to any other person, and such liability may be
enforced as if the company were not deregistered.
(6) If a company is deregistered while having
outstanding liabilities, the persons who are members of
such company at the time of deregistration shall be
jointly and severally liable for such liabilities.
(7) The Registrar may, on application made by an
interested party in such form as may be prescribed,
restore a company deregistered in terms of this section,
where the interested party proves to the satisfaction of
the Registrar that —
(a) the company was at the time of its deregistration
carrying on business and was in operation; or
(b) it is otherwise just that the registration of the
company be restored.”.
23. Section 273 of the Act is amended by substituting for subsection Amendment of
section 273 of
(2), the following new subsection — the Act
“(2) T h e a p p o i n t m e n t of an accounting officer of a close
company shall take effect on the date of registration of the close
company or on any date thereafter:
Provided that a close company shall, in the prescribed form
and within 20 days from the date the appointment is made, notify
the Registrar of such appointment.”.
24. Section 277 of the Act is amended by inserting immediately after Amendment of
section 277 of
subsection (3), the following new subsection — the Act
“(4) A company limited by guarantee shall, forthwith after its
conversion from a company limited by shares, give notice in
writing of the conversion to all creditors of the company at the
time of conversion, and to all other parties to contracts or legal
proceedings in which the company was involved at the time of
the conversion.”.
25. Section 278 of the Act is amended — Amendment of
section 278 of
(a) by substituting for subsection (3), the following new subsection — the Act
“(3) The application for a conversion under subsection (2) shall
state —
(a) the size, expressed as a percentage, of each member’s
interest in the close company; and
(b) the name and address of the person appointed to be the
accounting officer of the close company.”;
(b) by substituting for subsection (4), the following new subsection —
“(4) Where the provisions of subsections (2) and (3) have been
complied with, the Registrar shall, if he is satisfied that the company
concerned has complied materially with the requirements of this
Act, register the company as a close company and —
A.488

(a) issue to the company a new certificate of incorporation

confirming the conversion;
(b) cancel the previous certificate of incorporation; and
(c) give public notice of the conversion.”; and
(c) by deleting subsection (6).
Amendment of 26. Section 279 of the Act is amended —
section 279 of
the Act (a) by substituting for subsection (1), the following new subsection —
“(1) A close company may be converted into a private company
limited by shares if —
(a) all the members agree, in writing, to convert the company
into a private company; and
(b) each member agrees, in writing, to take up a specified
number of shares.”;
(b) by deleting paragraph (a) in subsection (3);
(c) by substituting for subsection (4), the following new subsection —
“(4) Where the provisions of subsections (2) and (3) have been
complied with ­—
(a) the Registrar shall, if he is satisfied that the company
concerned has complied materially with the requirements
of this Act, register the company as a close company and —
(i) issue to the company a new certificate of incorporation
confirming the conversion,
(ii) cancel the previous certificate of incorporation, and
(iii) give public notice of the conversion; and
(b) the company shall, forthwith after its conversion from a
close company, give notice in writing of the conversion to
all creditors of the company at the time of conversion, and
to all other parties to contracts or legal proceedings in which
the company was involved at the time of the conversion.”; and
(d) by deleting subsection (5).
Amendment of 27. Section 280 of the Act is amended —
section 280 of
the Act
(a) by deleting subsection (3); and
(b) by substituting for subsection (4), the following new subsection —
“(4) Where a company has complied with the provisions of
subsections (1) and (2),
(a) the Registrar shall —
(i) issue to the company a new certificate of incorporation
in the prescribed form, confirming the conversion,
(ii) cancel the previous certificate of incorporation, and
(iii) give public notice of the conversion; and
(b) the company shall, forthwith after its conversion from a
private company or public company as the case may be,
give notice in writing of the conversion to all creditors of
the company at the time of conversion, and to all other
parties to contracts or legal proceedings in which the
company was involved at the time of the conversion.”.
 A.489

28. Section 331 of the Act is amended in subsection (1) by inserting Amendment of
section 331 of
immediately after paragraph (e), the following new paragraph — the Act
“(f) the company has failed to comply with the requirements of
this Act.”.
29. Section 333 of the Act is amended by inserting immediately after Amendment of
section 333 of
subsection (4), the following new subsection — the Act
“(5) If a company is to be removed from the register under section
217 (6), the Registrar may remove such company from the register
without giving any notice and subsection (4) shall not apply.
30. Section 341 of the Act is amended by substituting for subsection Amendment of
section 341 of
(3), the following new subsection — the Act
“(3) The Registrar shall, prior to restoring a company to the
register, publish a public notice setting out —
(a) the name of the company;
(b) the name and address of the applicant;
(c) the section under, and the grounds on which, the
application is made or the Registrar proposes to act, as
the case may be; and
(d) the date by which an objection to restoring the company
to the register shall be delivered to the Registrar, not
being less than 20 working days after the date of notice.”.
31. Section 345 of the Act is amended — Amendment of
section 345 of
(a) in subsection (1) by substituting for paragraph (c), the following the Act
new paragraph —
“(c) a list of the external company’s —
(i) directors containing similar particulars with respect to
directors as are by this Act required to be contained in
the register of the directors, managers and secretaries
of the company,
(ii) shareholders and the number of shares issued to each
shareholder, and
(iii) beneficial owners and address of each beneficial owner;”; and
(b) inserting immediately after subsection (2), the following new
subsection —
“(2A) Where a company fails to comply with subsection (1) —
(a) the company shall be guilty of an offence and liable to
a penalty set out in section 492 (4); and
(b) every director of the company shall be guilty of an
offence and liable to a fine set out in section 492 (2). ”.
32. Section 347 of the Act is amended by — Amendment of
section 347 of
(a) substituting for subsection (1), the following new subsection — the Act
“(1) An external company shall, within one month, lodge with the
Registrar the particulars of the change or alteration, where a
change or alteration is made in —
(a) the constitution, charter, statutes, memorandum or
articles or other instrument lodged;
A.490

(b) the directors;

(c) shares or shareholders;
(d) the authorised agents or the address of an authorised agent;
(e) the situation of the registered office in Botswana or of the
days or hours during which it is open and accessible to the
public;
(f) the address of the registered office and its place of incorporation
or origin;
(g) the name of the company; or
(h) the powers of any directors resident in Botswana who are
members of the local board of directors.”; and
(b) inserting immediately after subsection (2), the following new
subsection —
“(2A) Where a company fails to comply with subsections (1) and (2) —
(a) the company shall be guilty of an offence and liable to
a penalty set out in section 492 (1); and
(b) every director of the company shall be guilty of an
offence and liable to a fine set out in section 492 (2). ”.
Deletion of 33. The Act is amended by deleting Part XXVIII of the Act.
Part XXVIII
of the Act

Amendment of 34. Section 493 of the Act is amended by inserting immediately after
section 493 of
the Act
the word “director” wherever it appears in the section, the words “or
secretary”.
Amendment of 35. Section 528 of the Act is amended in subsection (2) by inserting
section 528 of
the Act
immediately after paragraph (e), the following new paragraph —
“(f) prescribe anything required to be prescribed under this Act.”.

PASSED by the National Assembly this 12th day of April, 2018.

BARBARA N. DITHAPO,
Clerk of the National Assembly.