Companies-Amendment-Act-2023.pdf

GOVERNMENT GAZETTE

OF THE

REPUBLIC OF NAMIBIA

N$8.00 WINDHOEK - 21 July 2023 No. 8137

CONTENTS

Page

GOVERNMENT NOTICE

No. 209 Promulgation of Companies Amendment Act, 2023 (Act No. 4 of 2023) of the Parliament . .. 1

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Government Notice

OFFICE OF THE PRIME MINISTER

No. 209 2023

PROMULGATION OF ACT

OF PARLIAMENT

The following Act which has been passed by the Parliament and signed by the

President in terms of the Namibian Constitution is hereby published in terms of

Article 56 of that Constitution.

No. 4 of 2023: Companies Amendment Act, 2023.

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2 Government Gazette 21 July 2023 8137

Act No. 4, 2023 COMPANIES AMENDMENT ACT, 2023

EXPLANATORY NOTE:

___________ Words underlined with a solid line indicate insertions in

existing provisions.

[ ] Words in bold type in square brackets indicate omissions

from existing provisions.

ACT

To amend the Companies Act, 2004 so as to insert new definitions; to repeal

certain provisions authorising public companies with share capital to issue

warrants entitling bearers of share capital to shares or stock specified in

the warrants, to require bearers of share warrants to convert the share

warrants into ordinary par value shares; to require companies to keep

and maintain registers of beneficial owners; and to provide for incidental

matters.

(Signed by the President on 19 July 2023)

BE IT ENACTED as passed by the Parliament, and assented to by the President,

of the Republic of Namibia as follows:

Amendment of section 1 of Act No. 28 of 2004 as amended by section 32 of Act

No. 8 of 2016

1. Section 1 of the Companies Act, 2004 (Act No. 28 of 2004) (hereinafter

referred to as the “principal Act”) is amended by –

(a) the insertion after the definition of “auditor” of the following

definition:

““beneficial owner” means a beneficial owner as defined in section 1

of the Financial Intelligence Act, 2012 (Act No. 13 of 2012);”;

(b) the insertion after the definition of “books or papers” and “books and

papers” of the following definition:

““Centre” means the Financial Intelligence Centre as defined in

section 1 of the Financial Intelligence Act, 2012 (Act No. 13 of

2012);”;

(c) the insertion after the definition of “company” of the following

definition:

““competent authority” means a competent authority as defined in

section 1 of the Financial Intelligence Act, 2012 (Act No. 13 of 2012);”.

Repeal of section 107 of Act No. 28 of 2004

2. Section 107 of the principal Act is repealed.

8137 Government Gazette 21 July 2023 3

Act No. 4, 2023 COMPANIES AMENDMENT ACT, 2023

Amendment of section 108 of Act No. 28 of 2004

3. Section 108 of the principal Act is amended by the addition after

subsection (3) of the following subsections:

“(4) Where a company has issued a share warrant to a bearer before

the commencement of this provision, the bearer of such share warrant must,

within 30 days from the date of commencement of this provision, convert the

share warrant into an ordinary par value share.

(5) A bearer of a share warrant who fails to comply with subsection

(4) commits an offence and is liable to a fine which does not exceed N$40 for

every day during which the contravention continues.”.

Insertion of section 122A in Act No. 28 of 2004

4. The principal Act is amended by the insertion after section 122 of the

following section:

“Register of beneficial owners

122A. (1) Every company, at its incorporation and thereafter,

must keep and maintain an accurate and up-to-date register of the beneficial

owners of the company and the register must be kept in Namibia at the same

office at which the register of members is kept.

(2) Every company must record in the register referred to in

subsection (1) the following information:

(a) in respect of each beneficial owner of the company –

(i) the first name and surname and any former first name

and surname of the beneficial owner;

(ii) the date of birth and identification number appearing

on the identity document of the beneficial owner;

(iii) full particulars of residential address, business address,

email address and postal address of the beneficial

owner;

(iv) contact details of the beneficial owner;

(v) the nationality of the beneficial owner; and

(vi) the nature and extent of the beneficial ownership; and

(b) in respect of a director or shareholder of the company who

is a nominee of a beneficial owner, information referred to in

paragraph (a).

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Act No. 4, 2023 COMPANIES AMENDMENT ACT, 2023

(3) Every company must, on a prescribed form, file with the Registrar

accurate and up-to-date information of the beneficial owner recorded in terms of

subsection (2), and where the information has changed the company must within seven

days of such changes file with the Registrar the changes to the information.

(4) A company or the Registrar, upon request by a competent authority,

must make available the information of the beneficial owner held and maintained by the

company or filed with the Registrar in terms of subsection (2).

(5) A company must appoint a person residing in Namibia who is –

(a) responsible for the safe keeping of the register of the beneficial owners;

and

(b) authorised by the company to make the information of the beneficial

owner recorded in terms of subsection (2) available to a competent

authority under subsection (4).

(6) The information of the beneficial owner and other information

regarding a company held by the Registrar are public information and upon request must

be made available by the Registrar for inspection by a member of the public, whether

electronically or physically, but the information of the beneficial owner is limited to

the full name of the beneficial owner and the nature and extent of beneficial ownership.

(7) Notwithstanding any other law to the contrary, the Registrar on his or

her own, the Centre on its own or the Registrar or the Centre on behalf of a competent

authority may –

(a) request information of the beneficial owner or any other information

regarding a company from; or

(b) provide the information referred to in paragraph (a) to,

an authority in a foreign state that has similar powers and duties as those of the

Registrar or the Centre for the purposes of an investigation of money laundering or

financing of terrorism or proliferation activities.

(8) The Registrar, the Centre or a competent authority that requested or

provided information of the beneficial owner or other information regarding a company

under subsection (7) must keep record of the information provided or requested.

(9) A company must keep and maintain records of the information of the

beneficial owner of the company and the nature and extent of the beneficial ownership

for a period of at least five years after the date on which the record was made.

(10) The administrator or liquidator of a company under dissolution and

any other person involved in the dissolution of a company must keep and maintain

records of the information of the beneficial owner of the company and the nature and

extent of the beneficial ownership for a period of at least five years after the date on

which the company is dissolved or otherwise ceases to exist.

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Act No. 4, 2023 COMPANIES AMENDMENT ACT, 2023

(11) If the Registrar has reasonable grounds to believe that a company or

a person –

(a) has failed or fails to keep and maintain a register of beneficial owners

referred to in subsection (1); or

(b) has failed or fails to comply with any time period referred to in

subsection (3), (9) or (10),

the Registrar must in writing issue a directive to the company instructing the

company to comply with subsection (1), (3), (9) or (10) within a period of seven

days from the date of receiving the directive.

(12) If a company or person refuses or fails to comply with a directive

issued under subsection (11), the Registrar may impose the administrative penalties

set out in subsection (14).

(13) In determining an appropriate administrative penalty, the Registrar

must consider the following factors –

(a) the nature, duration, seriousness and extent of the relevant non-

compliance;

(b) whether the company or person has previously failed to comply with

this section; and

(c) any remedial steps taken by the company or person to prevent a

recurrence of the non-compliance.

(14) After considering the factors referred to in subsection (13), the

Registrar may impose any of the following administrative penalties on the company

or person –

(a) if the company or person has failed to keep and maintain a register

in terms of subsection (1) or has failed to comply with the time

period referred to in subsection (3), (9) or (10), a financial penalty

not exceeding N$50 000; and

(b) if the company or person after receiving a directive referred in

subsection (11) fails to comply with the directive, in addition to the

penalty imposed under paragraph (a), a financial penalty which does

not exceed N$1 000 for every day during which the contravention

continues.

(15) The Registrar must list a company that fails to comply with

subsection (1), (3), (9) or (10) on an inactive list and thereafter deregister the

company after six months from the date the company was listed.

(16) On imposing the administrative penalties under subsection (14), the

Registrar must in writing notify the company or person –

(a) of the decision and the reasons for the decision; and

(b) of the amount payable as a penalty and any interest that may become

payable and the interest rate, and the period within which the penalty

must be paid.

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Act No. 4, 2023 COMPANIES AMENDMENT ACT, 2023

(17) Any financial penalty imposed under subsection (14) must be paid

to the Registrar.

(18) A company or a person who –

(a) contravenes or fails to comply with subsection (1), (2), (3), (4), (9)

or (10);

(b) knowingly provides false or misleading information of the beneficial

owner or the nature and extent of the beneficial ownership;

(c) knowingly withholds information of the beneficial owner that must

be entered into the register referred to in subsection (1); or

(d) knowingly makes a false entry into the register referred to in

subsection (1),

commits an offence and is liable on conviction to a fine not exceeding N$10 000 000

or to imprisonment for a period not exceeding 10 years or to both such fine and

such imprisonment.

(19) The Registrar may impose an administrative penalty under this Act

irrespective of any criminal liability or penalty to which the company or a person may

be subjected to, but where the company or a person has been sentenced to a fine

following a conviction for an offence, the Registrar must take the fine imposed into

account when assessing an administrative penalty payable under this section.”.

Short title

5. This Act is called the Companies Amendment Act, 2023.

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