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Here is an easy to follow booklet on "how to go about" by Dianne Hubbard and Rebecca Stubbs. This should explain everything you nee to know: from Associations to Trusts and a sample constitution. More legal information on companies is available in Namlex.

MORE DETAIL ON COMPANIES (Under COnstruction!!!)

Section 21 of the Companies Act No. 28 of 2004 makes provision for non-profit type of business and it is regarded as a public company, but holds no share capital.

The advantages of forming a company:

A public company can issue shares to the public to raise capital.
Shareholders are not liable for the debts of the company, often negated when shareholders are required to offer personal guarantees.
As in the case of the close corporation, the company has “perpetual succession” (indefinite life-span), which means the business can continue even if the members die.

Forming a company:

  • It is recommended that due to the relative complexity in the compilation of the memorandum and articles of a company and the fact that these documents to a greater extent have to be adjusted to fit the specific circumstances and needs of each individual company, it is suggested that the services of a legal practitioner be used in this regard. The memorandum and articles also have to be certified by a notary public who in any event will have to be a member of the legal profession.

  • The legal aspects of the company are regulated by the “Companies Act 61 of 1973”

  • .
    • Please note that all documents must be completed in black ink.

The memorandum and articles of association:

•               The memorandum and articles of association have to be registered at the Registrar of Companies and Close Corporations. The forms are obtainable at any stationer dealing with statutory documents.
•               Most attorneys and auditors have these forms on computer.
•               Submit more than one name in order of preference to the Registrar, a Revenue stamp of N$5.00 is              required and is obtainable at any post office.
                This is to reserve the name you would like to register your company under and is completed on form           (CM5).
•               The amount of initial registered share capital. “Par value” shares (e.g. one hundred shares at N$2.50          each) or “no par value” shares (e.g. one hundred shares). This is submitted to the Registrar on the CM2.
•               Any legal company powers you would like to exclude or qualify.
•               Mention any contract entered into by the members before registration of the
                company.
•               Any special conditions.
•               An association clause stating that you wish to form a company and how many shares they agree to own.
•               The articles of association deal with the internal management of the company. Schedule 1 of the                 Companies Act has a model, which you could follow. (Similar to the CCs’ association agreement).

Other documents:

•               Every other name of the company (translated or shortened form) should first be reserved separately on      CM5 with a N$5.00 revenue stamp for each name.
•               CM7 “Approved translated version of name or abbreviated form” is submitted to the registrar with a              N$10.00 revenue stamp.
•               CM22 Physical and postal address of the company is submitted to the registrar with a revenue stamp of     N$2.00.
•               The auditor needs to complete a CM31, which contains all his details and serves as his consent to act         for the company. This is submitted to the
                registrar with a N$2,00 revenue stamp.
•               Evidence that the necessary fees have been paid, a fee of N$5,00 for each N$1000 or part thereof of         authorized share capital which is submitted on CM2. Annual duty is payable on a form CM23 a minimum amount of N$80,00 depending on your issued capital.
•               The articles of association deal with the internal management of the company. Schedule I of the Companies Act has a model, which you could follow. (Similar to the CCs’ association agreement).
NB.         Upon conversion of a close corporation into a company, a form CM5 will only be necessary if the name     changes, otherwise no reservation of name is required. Statements in terms of section 29C (4) (a) (i)     and (ii) of the Companies Act have to accompany all documents as listed above in the case of      conversion.

When can a company start doing business?

After the following have been completed (and you have received your certificate
to start the business):
•               Particulars of directors and officers of the company are completed on form CM29 and are kept at the          company’s registered office for inspection. Form CM29 must be completed and submitted within 14 days          of any change of appointment.

DOCUMENTS REQUIRED FOR THE INCORPORATION OF A COMPANY
•               The CM29 is part of the documentation necessary to incorporate the company and, only once the CM46     is received can the company start trading.
•               Application for a certificate to start the business is completed on form CM46 and is submitted to the             registrar                 with a N$10 revenue stamp, plus annual duty.
•               The director needs to complete written consent on form CM27 and is kept at the registered office of the      company.
•               A statement from each director testifying that the capital they have is sufficient to conduct business, if          not, how they intend financing the company must be completed on form CM47 and is submitted to the             Registrar with a revenue stamp of N$2,00.
•               The name of the company must appear on letterheads, invoices, receipts, cheques, notices etc.
•               The names of the directors must appear on the bottom of the letterheads (and nationalities if not Namibians).
•               Note that a company must pay annual duty within one month after the end of it’s financial year, a                 minimum of N$80-00 affixed on form CM23.

 Criminal Offences:

•               Failure to keep minutes of company meetings, directors or management meetings.
•               Failure to lodge written consent to act as a director or officer.
•               Falsifying books and records
•               Failure to submit details to the registrar concerning company membership.
•               Failure to use the prescribed name of the company on company documents.
•               Any breach of a whole host of regulations regarding share capital and shares, including the allotment         and issue of shares, transfer of shares, classification of shares, directors’ right to deal in shares, and the          restriction placed on certain shares.
•               Failure to register special resolutions.
•               Failure to circulate notices of resolutions and statements to members entitled to receive them.
•               Not holding the Annual General Meeting at the appropriate time.
•               Issuing unsigned annual financial records.
•               Failure to keep proper accounting records.
•               Failure to convene General Meetings when these are requested by members.
•               Failure to permit inspection of the minutes of company meetings.
•               Pretending to be a director when not validly appointed as one.
•               Failure to submit the necessary details in the registrar of directors and officers.
•               Making loans to directors or officers, if this is prohibited by the Articles of Association.
•               Misrepresenting the affairs of the company.
•               Not notifying the registrar if an auditor has not been appointed.
•               Secretaries and managers should also register with the company on a CM27 form as officers and               executive officers.

Meetings:

•               According to the Companies Act, a company should hold an Annual General Meeting.
•               This should be held within 15 months of the date of the previous meeting.
•               If the company is new the meeting should be held within 18 months of the company starting up.
•               21 days written notice of the meeting must be given.
•               Certain matters have to be dealt with at these meetings: financial statements, approval of dividends, and   election of directors.

Submitting annual returns to the Registrar:

•               Both a director and a secretary must sign this form and a copy must also be kept at the registered office     of the company.

Fees and penalty fees:
•               Power of attorney (N$5.00)
•               Name of the company (CM5, N$5.00 & CM 8, N$25.00) Certificate to start business (CM46, N$10.00)
•               If the following is not completed within the time period allowed, a fine is payable
•               Failure to lodge allotments (distribution of shares) with the Registrar.
•               Failure to provide copies of specific resolutions found on CM26 form.
•               Failure to provide particulars of directors, officers and auditors on CM29 form.
•               Annual returns (CM23) payment of annual duties to keep the company alive, failure to submit this form      will lead to the cancellation of the company from the Registrar’s records. Minimum amount of N$80.00 is              payable

These documents can be obtained at Walton’s Stationery, Typoprint or Windhoek Stationers.

As indicated above the memorandum and articles of association must be lodged
in triplicate. The second and third set must be accompanied by a notarial
certificate and be stamped with the seal of the notary on each page. These sets
must be properly bound by the notary.
THE INCORPORATION OF A COMPANY NOT FOR GAIN (SECTION 21)

This kind of company is suitable for an association with the main object of
promoting religion, art, sciences, education, charity, recreation or any other
cultural or social activity or communal group interests.

Firstly the proposed name would be reserved. At this point in time the main
object must also be stated. A Section 21 Company must have as its main object
the advancement of religion, art, science, education, charity, entertainment, or
other cultural or social activities, or of group or communal interests.

Once the name has been approved, the remaining documents may be drawn.
The main documents are the Memorandum and Articles of Association. The
company will be limited by guarantee as to the amount contributed by each
member. No shares are issued.

A Section 21 Company is a public company, and all provisions in the Companies
Act dealing with public companies, other than those provisions pertaining to the
shares or share capital of a company, apply.

Accordingly in terms of sections 208; 32 and 66 of the Companies Act, 1973 (Act
No 61 of 1973) the section 21 company must have a minimum of 7 members and
at least 2 directors.
There is no legal impediment to foreign members or
directors. The written consent of a Namibian auditor to act for the company is
required.

A notice of the registered address of the company in Namibia must be provided.
This can be the address of the attorneys, auditor or company secretaries, particularly if it is a new business venture in the process of establishment. This is the official address of the company and all legal documents would be served there.

The company must record its financial year end. This is important from the
perspective of income tax, the rendering of income tax returns and the
preparation of financial statements by the auditors.

Once incorporated, a public officer must be appointed in terms of the Income Tax
legislation, who is a person responsible for dealing with the Ministry of Finance.
Section 21 Companies do not automatically receive tax exemptions. These have
to be applied for in terms of the relevant legislation. The corporate income tax
rate is currently 35%.

All documents must be completed in black ink.

DOCUMENTS REQUIRED FOR THE INCORPORATION OF A COMPANY NOT
FOR GAIN (SECTION 21)

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DOCUMENT FEES PURPOSE
CM5 (in duplicate)   N$5,00 Original stamped   
CM3 (in triplicate)       Certificate of incorporation
CM4 (in triplicate)    N$25,00 Memorandum of Association of a company without a share capital. Original stamped
CM4A (in triplicate)   Guarantee concerning the liability of members
CM4B (in triplicate)   Association clause and particulars of members
CM22 (in duplicate)   Notice of registered office and postal address
CM29 N$2,00 Contents of Register of Directors    
CM31 (in duplicate) N$2,00 Consent to act as Auditor
CM44B (in triplicate)   Articles of Association of a company without a share capital
CM44C (in triplicate)   Signatories to Articles of Association

  Some of these documents can be obtained at Walton’s Stationery or ABC Stationers.
Note that any person may complete a founding statement and submit it to the
Registered mail or certified post. It is not necessary for it to be done by a
professional person or submitted personally.

 

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