Companies Act, 2009

Act 8 of 2009

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Companies Act, 2009

Act 8 of 2009

  • Commenced on 1 April 2010
  • [This is the version of this document at 1 December 1998.]
An Act to provide for the constitution, incorporation, registration, management, administration and winding up of companies and other associations.

Preliminary

1. Short title and commencement

This Act may be cited as the Companies Act, 2009, and shall come into force on such date as the Minister may, by Notice in the Gazette, appoint.

Chapter 1
Interpretation and general application

2. Interpretation

(1)In this Act, unless the context otherwise provides—"accounting records", in relation to a company, includes accounts, deeds, writings or other relevant documents;"annual return" means the returns referred to in section 151;"articles", in relation to a company means the articles of association of that company and includes any provision, in so far as it applies in respect of that company, set out in Table A, B or D in Schedule 1 and the definition of accounting records;"certified" means certified in the manner prescribed by the Minister to be a true copy;"company" means a company incorporated in terms of this Act and includes any company which immediately prior to the commencement of this Act was a company in terms of the repealed Act;"court" means the High Court, and in relation to any offence under this Act, includes a magistrate’s court having jurisdiction in respect of that offence;"debenture" includes debenture stock, debenture bonds and securities of a company, whether constituting a charge on the assets of the company or not;"deregistration" means the cancellation by the Registrar of the registration of the memorandum and articles of the company, and in relation to a foreign company, the cancellation by the Registrar of the registration including the charter, statute, memorandum of association and articles or other instrument defining the constitution of that company;"director" includes any person occupying the position of director or alternate director of a company, by whatever name he may be designated;"equity share capital" and "equity shares" mean a company’s issued share capital and shares excluding any part thereof which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution;"foreign company" means a body corporate incorporated under the laws of a foreign country;"judicial manager" means the judicial manager referred in section 365 and includes a provisional judicial manager;"Kingdom" means the Kingdom of Swaziland;"limited company" means a company having the liability of its members limited by the memorandum of association to the amount (if any) of unpaid on the shares held by them;"liquidator" means the person appointed under Chapter XIV as liquidator of such company, and includes any co-liquidator and any provisional liquidator so appointed;"manager" means any person who is a principal executive officer of the company, by whatever name he may be designated and whether or not he is a director;"Master" means the Master of the High Court;"member" means a person defined under section 97;"memorandum" means the memorandum of association of a company and in relation to a foreign company, includes the charter, statutes, memorandum of association and articles, or other instrument constituting or defining the constitution of company;"Minister", in relation to any matter to be dealt with in the office of the Master in connection with the winding up or judicial management of companies, means the Minister of Justice and, in relation to any other matter, means the Minister responsible for companies;"officer" includes any managing director, manager or secretary of a company;"place of business" means any place where the company transacts or holds itself out as transacting business and includes a share transfer or share registration office;"prescribed" means prescribed by or under this Act or Regulations;"prospectus" means any prospectus, notice, circular, advertisement or other invitation offering any shares or debentures of a company to the public;"provisional judicial manager" means a provisional judicial manager appointed by the Master under section 367;"Registrar" means the Registrar of Companies appointed under section 4 and includes the Deputy Registrar or any other officer delegated by the Registrar to exercise powers conferred on him under this Act;"Regulations" means the Regulations made under this Act;"secretary" includes any official of a company by whatever name the secretary may be designated, including a body corporate, who or which is performing the duties normally performed by a secretary of a company;"share" means a share in the share capital of a company and in relation to an offer of shares for subscription or sale, includes a share and a debenture of a company, whether a company within the meaning of this Act or not, and any rights or interests, by whatever name may be called in a company or in or to any such share or debenture;"special resolution" means a resolution passed at a general meeting of that company, in the manner provided for by section 163;"repealed Act" means the Companies Act No. 7 of 1912;"winding-up order" means any order of court whereby a company is wound up and includes any order of court whereby a company is placed under provisional winding-up for so long as such order is in force.
(2)A person shall not be deemed to be, within the meaning of any provision of this Act, a person in accordance with whose directions or instructions the directors of a company are accustomed to act by reason only that the directors of the company act on advice given by him in a professional capacity.
(3)
(a)For the purposes of this Act, a company shall, be deemed to be a subsidiary of another company if—
(i)that other company is a member of it, and—
(aa)holds majority share capital in it;
(bb)holds a majority of the voting rights in it;
(cc)has the right to appoint or remove directors holding a majority of the voting rights at meetings of the board;
(dd)has the sole control of a majority of the voting rights in it, whether pursuant to agreement with other members or otherwise; or
(ii)it is a subsidiary of any company which is a subsidiary of that other company; or
(iii)subsidiaries of that other company or that other company and its subsidiaries together hold the rights referred to in subparagraph (i)(aa), (bb) or (cc).
(b)In determining whether a company holds the majority of the voting rights as contemplated in paragraph (a)(i) or (aa)—
(i)voting rights which are exercisable only in certain circumstances shall be taken into account only—
(aa)when those circumstances have arisen, and or so long as they continue; or
(bb)when those circumstances are under the control of the person holding the voting rights;
(iii)voting rights held by a person in a fiduciary capacity shall be treated as not held by him but by the beneficiary of such voting rights;[Please note: numbering as in original.]
(iv)voting rights held by a person as nominee for another person shall be treated as not held by him but by that other person, and voting rights shall be deemed held by a nominee for another person if they are exercisable only on the instructions or with the consent or concurrence of that other person.
(c)A body corporate or other undertaking which would have been a subsidiary of a company had the body corporate or the undertaking been a company shall be deemed to be a subsidiary of that company.
(4)For purposes of this Act, a subsidiary shall be deemed to be a wholly owned subsidiary of another company if it has no members except that other company and a wholly owned subsidiary of that other company and its or their nominees.

3. General application of Act and preservation of rights of existing companies

(1)This Act shall apply to a company incorporated under this Act, foreign company and, save as is otherwise provided herein, to an existing company incorporated under the repealed Act.
(2)Any reference in this Act, express or implied, to the date of incorporation of an existing company, shall be construed as a reference to the date on which such company was originally incorporated.
(3)Nothing contained in this Act shall affect any right or privilege acquired or liability incurred by any existing company or foreign company, whether by agreement or otherwise, before the commencement of this Act, or affect the validity of the memorandum and articles of any such existing company or the memorandum of an external company in force, or deemed to be in force at such commencement and not in conflict with the provisions of this Act.
(4)Those provisions of the articles of any existing company which should have been contained in the memorandum of association if the company had been formed under this Act, shall, for the purposes of this Act, be deemed or be included in the memorandum of the company, and shall be subject in all respects to the provisions of this Act relating to a memorandum of association.
(5)This Act shall not apply—
(a)with reference to any company the formation, registration and management of which are governed by the provisions of any law relating to building societies, insurance companies, trade unions and employers’ organisations, or co-operative societies or companies, save in so far as may be otherwise provided in any such law; or
(b)with reference to any company or foreign company or society which is subject to the provisions of any law relating to banks or insurance companies or societies in so far as those provisions are inconsistent with this Act.
(6)Any existing company which has issued any shares which are at the commencement of this Act not fully paid-up, shall remain, subject to the provisions of the repealed Act in respect of such shares only, as if this Act had not been passed.

Chapter 2

Part I – Office of Registrar

4. Office of Registrar

(1)There shall be an office of the Registrar consisting of the Registrar, Deputy Registrar and such other officers who shall be responsible for the administration of this Act and who shall perform such functions and exercise such powers as may be conferred on them by this Act or any other enactment.
(2)The Registrar shall hold at least an LLB qualification and his staff shall be appointed in accordance with the Civil Service Order, 1973, or its successor thereto.
(3)Deputy Registrar shall hold an LLB qualification.
(4)The Registrar and his staff shall be appointed by the Civil Service Commission.

5. Functions of Registrar

The Registrar is responsible for—
(a)taking charge of and be responsible for the safe custody of all documents lodged with him under this Act;
(b)examining and registering all returns and other documents lodged with him;
(c)registering any alteration in the share capital of a company provided that such alteration is in accordance with this Act;
(d)registering amendments to the memorandum and articles of association of any company;
(e)registering the changes in the name of any company;
(f)registering all transfer of shares in respect of any company registered in Swaziland;
(g)exercising any other powers which the Minister may, by regulations, prescribe; and
(h)performing such other things that are incidental or related to the exercise of his functions.

6. Seal of office

(1)The Registrar shall have a seal of office which shall be affixed to every memorandum and articles of association and certificates of incorporation lodged with or registered by him, and to any copy of a document issued by him in lieu of the original documents.
(2)The seal and the impression shall be judicially noticed in evidence.

7. Exemptions from civil liability

No act or omission by the Registrar or any officer or other person in the employment of the Government, having duties to perform under this Act, shall subject the Government or the Registrar, or any such officer or person to any liability for any loss or damage sustained by any person in consequence of any such act or omission unless such act or omission was mala fide or was due to want of reasonable care or diligence.

8. Inspection and copies of documents in the office of the Registrar and by foreign governments and institutions of higher learning

(1)Subject to subsection (2), any person may, on payment of the prescribed fee—
(a)inspect any document which is open to inspection kept under this Act by the Registrar in respect of any company; or
(b)obtain a certificate from the Registrar as to the contents or part of the contents of any document kept by him under this Act in respect of any company; or
(c)obtain a copy of or extract from any such document.
(2)No fee referred to in subsection (1) shall be payable if the Registrar is satisfied—
(a)that an inspection, certificates, copy or extract is required on behalf of a foreign government accredited to the Kingdom of Swaziland and no fees are payable in the foreign country concerned in respect of similar inspections, certificates, copy or extract required by the government of Swaziland;
(b)that any inspection certificate, copy or extract is required for the purposes of research by or under the control of an institution of higher education.

9. Manner of payment of fees to the office of the Registrar

(1)The payment of all fees payable to the Registrar, as required by this Act shall be effected by affixing revenue stamps to any document.
(2)No document, form, return or notice in respect of which any fee or payment required under this Act, shall be complete unless proof of payment of the prescribed fee, additional fees (if any) or other moneys has been delivered to the Registrar.
(3)Fees payable under this Act to the Registrar shall be debts due to the Government recoverable in any competent court.

10. Annual report by Registrar

The Registrar shall, at the end of each calendar year, submit to the Minister a report on the activities of his office.

11. Decisions of Registrar reviewable by court

Any person, including any company or other body corporate, aggrieved by any decision, ruling or order of the Registrar may bring the same under review by the High Court.

12. Security for costs in legal proceedings by companies and bodies corporate

Where a company or other body corporate is plaintiff or applicant in any legal proceedings, the court may at any stage, if it appears by credible testimony that there is reason to believe that the company or body corporate or, if it is being wound up, the liquidator thereof, will be unable to pay the costs of the defendant or respondent if successful in his defence, require sufficient security to be given for those costs and may stay all proceedings until the security is given.

13. Copies of court orders to be transmitted to Registrar and Master

Where any court makes any order under this Act in relation to any company, the Registrar of the court shall without delay transmit a copy of the order to the Registrar and if such order relates to the winding-up or judicial management of any company, also a copy thereof to the Master.

Part II – Standing Advisory Committee

14. Standing Advisory Committee

(1)
(a)The Minister shall appoint a Standing Advisory Committee on company law consisting of a chairman and such ex officio and other members as he may, from time to time, determine.
(b)A member of the Standing Advisory Committee shall hold office for a period not exceeding three (3) years and shall be eligible for re-appointment upon the expiration of the period of his office.
(2)The Standing Advisory Committee may, from time to time, make recommendations to the Minister in regard to any amendments to this Act and shall advise the Minister on any matter referred to it by the Minister.
(3)The Standing Advisory Committee may call to its assistance such person or persons as it may deem necessary to assist it or to investigate matters relating to company law.
(4)The Chairman shall be responsible for the administration of the Standing Advisory Committee.
(5)The Chairman of the Standing Advisory Committee shall be a person who has the qualifications of being appointed a Judge of the High Court.
(6)The other members other than the ex officio members must be persons who have experience in commerce, industry, labour and other relevant occupations.
(7)The Minister shall, from time to time, determine the remuneration of the Chairman and of the members of the Standing Advisory Committee.

Chapter III
Types and forms of companies, conversions and limitations on partnerships and associations

15. Types and forms of companies

(1)A company incorporated under this Act may either be—
(a)a company having the liability of its members limited by the memorandum to the amount of unpaid shares respectively held by them and in this Act referred to as a company limited by shares; or
(b)a company having the liability of its members limited by the memorandum 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 and in this Act referred to as a company limited by guarantee; or
(c)a company not having any limit on the liability of its members and in this Act referred to as an unlimited company.
(2)A company referred to in subsection (1) may either be a private company or a public company.
(3)A company is deemed to be a local company if that company
(a)has Swazi citizens who hold more than one half of its issued share capital;
(b)has Swazi citizens forming the majority of its shareholders who have control over the placement of the Board of Directors; and
(c)has Swazi citizens forming the majority of its Board of Directors.

16. Meaning of "private company" and cessation of its privileges

(1)In this Act "private company" means a company having a share capital and which by its articles
(a)restricts the right to transfer its shares; and
(b)prohibits any offer to the public for the subscription of any shares or debentures of the company.
(2)Where two or more persons hold one or more shares of a company jointly they shall, for the purposes of this section, be treated as a single member.
(3)No private company shall alter its articles in such manner that they no longer include all of the provisions referred to in subsection (1) unless it is at the same time converted into a public company.
(4)Subject to subsection (5), if a private company fails to comply with the provisions of its articles referred to in subsection (1), while they are included in the articles, it shall forthwith become subject to the provisions of section 263, as if it were a public company.
(5)Subsection (4) shall not apply where the court, on being satisfied that the failure to comply with the provisions was unintentional or due to some other sufficient cause or that on other grounds it deems just and equitable to grant relief.

17. Incorporation of associations not for gain

(1)Any association—
(a)formed or to be formed for any lawful purpose;
(b)having the main object of promoting religion, arts, sciences, education, charity, recreation, or any other cultural or social activity or communal or group interests, including all game sanctuaries and other similar institutions concerned with the protection of wildlife or flora in Swaziland;
(c)which intends to apply its profits or other income in promoting its said main object;
(d)which prohibits the payment of any dividend to its members; and
(e)which complies with the requirements of this section in respect of its formation and registration,
may be incorporated as a company limited by guarantee.
(2)The memorandum of such association shall comply with the requirements of this Act and shall, in addition, contain the following provisions
(a)the income and property of the association wheresoever derived shall be applied solely towards the promotion of its main object, and no portion thereof shall be paid or transferred, directly or indirectly by way of dividend, bonus, or otherwise, to the members of the association:Provided that nothing shall prevent the payment in good faith of reasonable remuneration to any officer or servant of the association or to any member thereof in return for any services actually rendered to the association;
(b)upon its winding-up, deregistration or dissolution the assets of the association remaining after the satisfaction of all its liabilities shall be given or transferred to some other association or institution having objects similar to its main object, to be determined by the members of the association at or before the time of its dissolution or, failing such determination, by the court.
(3)Existing associations incorporated under section 21 of the repealed Act shall be deemed to have been formed and incorporated under this section.

18. Incorporation of certain branches of foreign companies and associations not for gain

(1)Notwithstanding anything to the contrary in this Act contained, a branch, established in the Kingdom of—
(a)a company or other association of persons, incorporated outside the Kingdom; or
(b)an association of persons which is not incorporated and has its head office in a foreign country, may be incorporated under this Act if—
(i)the main object in the Kingdom of that branch corresponds with the main object of the company or association concerned;
(ii)the said branch complies with the requirements of section 17; and
(iii)the whole of the business and all the property, rights and obligations in the company or association concerned will, on incorporation under section 17 of the said branch, be transferred in due form to, vest in and be binding upon the company so incorporated.
(2)Notwithstanding anything to the contrary contained in any law—
(a)no transfer or stamp duty shall be payable in respect of the transfer of property contemplated in subsection (1)(iii); and
(b)any licence, exemption, permit, certificate or authority held in terms of any law by the company or association concerned in respect of its business or property in the Kingdom, shall with effect from the date of incorporation of the branch concerned as a company by virtue of the provisions of subsection (1), for the purposes of any such law, be deemed to be held by the company so incorporated in respect of that business or property.
(3)This Act, with regard to external companies, shall not apply in the case of an external company a branch of which has been incorporated as a company by virtue of subsection (1).

19. Conversion of a public company into a private company and vice versa

(1)With the sanction of a special resolution and upon compliance with the requirements of sections 17 and 21 and other requirements of this Act in respect of private companies, a public company may convert itself into a private company.
(2)With the sanction of a special resolution and upon compliance with the other requirements of this Act in respect of public companies, a private company may convert itself into a public company.

20. Conversion of unlimited company

An unlimited company may, with the sanction of a special resolution and upon compliance with the requirements of section 21 and the other requirements of this Act, convert itself into a limited company, but such conversion shall not affect the liability of its members in respect of any debts, liabilities or obligations incurred or contracts entered into by, with or on behalf of the company before the conversion.

21. Notice of intended conversion of a company

(1)Any company intending to convert itself into another type or form of company shall not less than three weeks before the date of the meeting convened for the purpose of passing the required special resolution, give notice in the Gazette of such intention, specifying the particulars of the proposed conversion and the date and place of the meeting. This subsection shall not apply to any private company intending to convert itself into a public company.
(2)If any company intending to convert itself into another type or form of company is a public company, it shall, in addition, send a notice referred to in subsection (1) to every creditor of the company by registered post not less than three weeks before the date of the meeting.

22. Contents and form of articles on conversion

When the articles of any company are to be altered for the purpose of converting the company into another type or form of company under section 19 or 20, the provisions of sections 48(2) and 49(1) as to the contents and form of articles shall apply, mutatis mutandis, to the articles of the said company.

23. Amendment of certificate of incorporation of converted company and when conversion effective

(1)The Registrar shall, on the registration of the special resolution, upon payment of the prescribed fee and upon being satisfied that the requirements of the Act have been complied with, register any conversion in the register of companies and shall issue an amended certificate of incorporation, stating the date of the first registration of the company, its former name, the name as altered and the nature of the conversion.
(2)Any such conversion, shall take effect, as from the date of the amended certificate of incorporation issued under subsection (1).
(3)The Registrar shall give notice in the Gazette of the conversion of a company into another type or form of company.

24. Effect of conversion and alteration of other registers

(1)The conversion of a company into another type or form of company under this Act shall not affect the corporate existence of the company as from the date of its first registration, nor any of its rights, debts, liabilities, obligations incurred or contracts entered into by, with, or on its behalf at any time or render defective any legal proceedings by or against the company, and legal proceedings that could have continued or commenced, may notwithstanding such conversion, be continued or commenced against the company as converted.
(2)If as a result of the conversion of the company into another type or form of company, any alteration in its name pursuant to the requirements of this Act is necessary, the alteration shall not be deemed to be a change of name for the purposes of section 38.
(3)Upon the production by a company of an amended certificate of incorporation or a certified copy thereof to any registrar or other officer charged with the maintenance of a register under any Act, and on compliance with the requirements of such register or officer as to the form of application, if any, and the payment of any prescribed fee, such registrar or other officer shall make in his register all such alterations as are necessary by reason of the conversion of the company into another type or form of company.

25. Prohibition of association or partnership exceeding twenty members, and exemption

(1)No company, association, syndicate or partnership consisting of more than twenty persons shall be permitted or formed in Swaziland for the purpose of carrying on any business that has for its object the acquisition of gain by the company, association, syndicate or partnership, or by the individual members thereof, unless it is registered as a company under this Act or is formed in pursuance of some other law.
(2)Subsection (1) shall not apply with reference to the formation by persons qualified to carry on any organised professions which are designated by the Minister by notice in the Gazette, or any associations, syndicate or partnership for the purpose of carrying and/or any combinations of such professions.
(3)The Minister may, by notice in the Gazette, grant the exemption of an association, syndicate or partnership from requirement of that section 25(1) where he is satisfied that the principal purpose of the association, syndicate or partnership is not the direct acquisition or gain by it or its individual members but the furtherance of their collective interests.

26. Unregistered associations carrying on business for gain not to be corporate bodies

No association of persons formed for the purpose of carrying on any business that has for its objects the acquisition of gain by the association or by the individual members thereof, shall be a body corporate, unless it is registered as a company under this Act or is formed in pursuance of some other law.

Chapter IV
Formation, objects, capacity, powers, names, registration and incorporation of companies, matters incidental thereto and deregistration

Formation, objects and powers

27. Mode of forming company

Any two or more persons associated for a lawful purpose or, where the company to be formed is to be a private company with a single member, any one person for a lawful purpose, may form an incorporated company by complying with this Act in respect of registration.

28. Capacity of companies

Where the company’s memorandum states that the object of the company is to carry on business as general commercial company the company shall have power to do all such things as are incidental or conducive to the [carrying] on of any trade or business by it.

29. A company’s capacity not limited by its memorandum

(1)The validity of an act done by a company shall not be called into question on the ground of lack of capacity by reason of any provision in the company’s memorandum of association.
(2)A member of a company may bring proceedings to restrain the doing of an act which, but for subsection (1), would be beyond the company’s capacity and no such proceedings shall lie in respect of an act to be done in the fulfilment of a legal obligation arising from a previous act of the company.
(3)
(a)The directors shall observe any limitations on their powers in the memorandum and articles of association and any action by the directors which, but for subsection (1), would be beyond the company’s capacity may only be ratified by the company by special resolution.
(b)A resolution ratifying the action referred to in paragraph (a) shall not affect any liability incurred by the directors or any other person and relief from any such liability shall be agreed to separately by special resolution.

30. Power of directors to bind the company

(1)Where a person is dealing with a company in good faith, the power of the board of directors to bind the company, or authorise others to do so, shall be deemed to be free from any limitations under the company’s memorandum and articles of association.
(2)For the purposes of this section—
(a)a person deals with a company if he is a party to transaction or other act to which the company is a party;
(b)a person shall not be regarded as acting in bad faith by reason only of his knowing that an act is beyond the powers of the directors under the company’s memorandum or articles of association; and
(c)a person shall be presumed to have acted in good faith unless the contrary is proved.
(3)Subsection (1) shall not affect any right of a member of the company to bring proceedings to restrain the doing of an act which is beyond the powers of directors and no such proceedings shall lie in respect of an act to be done in fulfilment of a legal obligation arising from a previous act of the company.
(4)Subsection (1) shall not affect any liability incurred by the directors, or any other person, by reason of the directors exceeding their powers.

31. No duty to enquire as to capacity of company or authority of directors

A party to a transaction with a company is not bound to enquire as to whether it is permitted by the company’s memorandum or as to any limitation on the powers of the board of directors to bind the company or authorise others to do so.

32. Abolition of the doctrine of constructive notice

(1)A person shall not be taken to have notice of any matter merely because of its being disclosed in any document kept by the Registrar of Companies (and thus available for inspection) or made available by the company for inspection.
(2)Subsection (1) shall not affect the question whether a person is affected by notice of any matter by reason of a failure to make such enquiries as ought reasonably to be made.
(3)In this section, "document" includes any material which contains information.

33. Invalidity of certain transactions involving directors

(1)Where a company enters into a transaction to which the parties include a director of the company or of its holding company, or a person connected with such a director or a company with whom such a director is associated, and the board of directors, in connection with that transaction, exceed any limitation on their powers under the company’s memorandum or articles, the transaction is voidable at the option of the company.
(2)Whether or not the transaction referred to in subsection (1) is avoided, any party to such transaction, and any director of the company who authorised the transaction is liable to—
(a)account to the company for any gain which he has made directly or indirectly by the transaction; and
(b)indemnify the company for any loss or damage resulting from the transaction.
(3)Nothing in subsection (1) or (2) shall be construed as excluding the operation of any other enactment or rule of law by virtue of which the transaction may be called in question or any liability to the company that may arise.
(4)The transaction ceases to be voidable if—
(a)restitution of any money or other asset which was the subject matter of the transaction is no longer possible; or
(b)the company is indemnified for any loss or damage resulting from the transaction; or
(c)rights acquired bona fide for value and without actual notice of the directors exceeding their powers by a person who is not party to the transaction would be affected by the avoidance; or
(d)the transaction is ratified by the company in general meeting ordinary or special resolution or otherwise as the case may require.
(5)A person other than a director of the company is not liable under subsection (2) if he shows that at the time the transaction was entered into he did not know the directors were exceeding their powers.
(6)This section does not affect the operation of section 30 in relation to any party to the transaction not within subsection (2)(a) or (b), and where a transaction is voidable by virtue of this section and valid by virtue of section 30 in favour of such a person, the court may, on the application of that person or of the company, make such order affirming, reversing or setting aside the transaction, on such terms, as may appear to the court to be just.

34. Pre-incorporation contracts

Any contract made in writing by a person professing to act as an agent or trustee for a company not yet formed, incorporated or registered shall be capable of being ratified or adopted by or otherwise made binding upon and enforceable by such company after it has been registered as if it had been duly formed, incorporated and registered at the time when the contract was made, if—
(a)the memorandum contains as one of the objects the adoption or ratification of such contract; and
(b)the contract or a certified copy thereof is delivered to the Registrar simultaneously with the delivery of the memorandum and articles of association in terms of section 52.

35. Subsidiary not to lend money to holding company

(1)Subject to subsection (3), no part of the funds of a company shall be employed directly or indirectly in loans by any other means to any company which is its holding company or which is a subsidiary of the holding company but not a subsidiary of itself unless such loan is authorised by special resolution of the company.
(2)Subsection (1) shall not be construed as prohibiting the lending of money in the ordinary course of business by a company actually carrying on a business which includes the lending of money.
(3)No company shall directly or indirectly (whether through the instrumentality of its subsidiary or otherwise) provide any security to another person in connection with an obligation of any company which is its holding company or which is a subsidiary of that holding company but not a subsidiary itself.
(4)Where any part of the funds of a company is employed in contravention of subsection (1), the company, the holding company concerned, and every director or officer of either company who authorises or knowingly is a party to the contravention, commits an offence.

36. Company not to be a member of its holding company

(1)Save as is provided in this section, no company shall be a member of a company which is its holding company, and any allotment, issue or transfer of shares of a company to its subsidiary shall be void.
(2)Subsection (1) shall not apply in relation to a subsidiary acting in a representative capacity or as a trustee, unless the holding company or a subsidiary thereof is beneficially interested under the trust and is not so interested only by way of security for the purpose of a transaction entered into by it in the ordinary course of a business which includes the lending of money.
(3)Nothing in this section may be construed as preventing—
(a)a subsidiary which, at the commencement of this section is, or before it became a subsidiary was, lawfully a member of its holding company, from continuing to be a member, but no such subsidiary shall have the right to vote at meetings of the holding company or any class of members thereof; or
(b)the allotment or issue of capitalisation shares by the holding company to its subsidiary.
(4)Subsections (1) and (3) shall, subject to subsection (2), apply to a nominee of a company which is a subsidiary as if reference in the said subsections to such a company included references to such a nominee.

37. Name of a company

(1)The Registrar may, on written application on the prescribed form and on payment of the prescribed fee, reserve a name pending registration of a company or a change of name by an existing company; and such reservation shall be for a period of sixty (60) days or much longer period, not exceeding in all ninety (90) days, as the Registrar may, for special reasons, allow.
(2)No name shall be reserved and no company shall be registered by a name which is identical with that for which a reservation is current or with that of a registered company or a registered foreign company, which so nearly resembles any such name as to be calculated to deceive unless the registered company or registered foreign company is in liquidation and signified its consent to the registration in such manner as the Registrar may require.
(3)Unless otherwise ordered by the Minister, the Registrar shall not register a company by a name which in his opinion is calculated to mislead the public or to cause annoyance or an offence to any person or class of person or is suggestive of blasphemy or indecency, or a name representing an occupation for which personal qualifications are required.
(4)Without the consent of the Minister, no company shall be registered by a name which include the words "Commonwealth", "Crown", "Government", "Royal", "Prime Minister", "State" or the combined words "United Nations" or any other word or words, abbreviation or initial which import or suggest that it enjoys or will enjoy the patronage of the King or Ngwenyama, or of the Government of any other country or of any department of any such Government or of the General Assembly of the United Nations.
(5)Where a company through inadvertence or otherwise is registered, whether originally or by reason of a change of name, by a name which would not, under the provisions of this section, be permitted to be used for the registration of a company, the Registrar within five years of the registration, may, in writing, order the company to change its name and the company shall thereupon do so within a period of six weeks from the date of the written order or such longer period as the Registrar may allow.

38. Change of name

(1)A company may, by special resolution change its name.
(2)Where the name of the company is changed in terms of this section, the Registrar shall enter the new name on the register in place of the former name, and shall issue a certificate of incorporation altered to meet the new name that has been entered in the register in place of the former name.
(3)The change of name shall, at the expense of the company concerned, be advertised by the Registrar in the Gazette and in the newspaper published and circulating in Swaziland.
(4)A change of name of a company shall not affect any rights, debts, liabilities or obligations of the company, nor render defective any legal proceedings by or against the company, and any legal proceedings that could have been continued or commenced by or against it prior to such change of name, may, notwithstanding such change of name, be continued or commenced by or against the company under its new name.
(5)Upon the production by the company of an amended certificate of incorporation or a certificate of the change of the name of such company or a certified copy thereof to any registrar or other officer charged with the maintenance of a register under any Act, and on compliance with the requirements of such registrar of officer as to the form of application, if any, and the payment of any prescribed fee, such registrar or other officer shall make in his register all such alterations as are necessary by reason of the change of the name of the company.
(6)A company shall not be registered with a name similar to or identical with the previous name of a company that has changed its name for a period of three years from such change.

39. Recourse to court in matters as to names

Any company or person aggrieved by any decision of the Registrar under section 37 or 38 may, within one month after such decision or order, apply to the court for relief, and the court shall have power to consider the merits of any such matter, to receive further evidence and to make any order it deems fit.

40. Formal requirements as to names of companies

(1)Subject to this section—
(a)the name of a public company shall include, as its last word, the word "Limited";
(b)the name of a private company shall include as its last two words, "(Proprietary) Limited".
(2)There shall be included in the name of any foreign company the memorandum of which has been registered under this Act, the statements "Incorporated in ... (stating the name of the foreign country concerned)" subjoined to such name.
(3)There shall be included in the name of any association not for gain incorporated under this Act, the statement Incorporated under section 17 subjoined to such name.
(4)If a company is being wound up by the court, voluntarily or is under judicial management, the statement "In Liquidation", "In Voluntary Liquidation" or "Under Judicial Management" as the case may be, shall be included in and be subjoined to the name of the company concerned and if the winding-up order or judicial management order is discharged, or the voluntary winding-up ceases, such statement shall be omitted from the name of such company.
(5)The addition to or omission from the name of any company of the words or statements prescribed by this section as a result of the conversion of a company into another type of company, or the discharge of a winding-up order or judicial management order or the cessation of voluntary winding-up shall not be deemed to be a change of name for the purposes of section 38(1):Provided that section 38(2), (3) and (4) shall apply in the case of such addition or omission as if it were a change of name.
(6)If under subsection (4) a statement is to be added to or is to be omitted from the name of a company, the liquidator or judicial manager, as the case may be, shall within seven days after his appointment or his discharge, as the case may be, apply to the Registrar on the prescribed form and on payment of the prescribed fee for such statement to be added to or omitted from the name of the company, and the Registrar shall issue a certificate of change of name.
(7)If a company fails to comply with subsection (1), (2), (3), (4) or (5) or in any way uses a name in contravention of such provision, it shall be guilty of an offence.
(8)If a liquidator or judicial manager fails to comply with subsection (6), he shall be guilty of an offence.

41. Use and publication of name of company

(1)Every company shall—
(a)display its name on the outside of its registered office and every office or place in which its business is carried on, in a conspicuous position and in characters easily legible;
(b)have its name engraved in legible characters on its seal (if any);
(c)have its name and number of its Certificate of Incorporation mentioned in legible characters in all notices and other official publications of the company and in all bills of exchange, promissory notes, endorsements, cheques, and orders for money or goods purporting to be signed by or on behalf of the company and in all letters, delivery notes, invoices, receipts, and letters of credit of the company:
Provided that for the purpose of this subsection the abbreviations "Ltd.", "(Pty)", "Co." and "&" may be used for the words "Limited", "(Proprietary)", "Company" and "and", respectively in a company’s name.
(2)Any director or officer of a company or any person acting on its behalf commits an offence if he—
(a)uses or authorises the use of any seal purporting to be a seal of the company whereon its name is not so engraved as aforesaid;
(b)issues or authorises the issue of any notice or other official publication of the company, or signs or authorises to be signed on behalf of the company any bill or exchange, promissory note, endorsement, cheque or order for money or goods, wherein its name is not mentioned in manner aforesaid; or
(c)issues or authorises the issue of any letter, delivery note, invoice, receipt of letter of credit or the company wherein its name is not mentioned in manner aforesaid.
(3)A person convicted of a contravention of subsection (2) shall, in addition, be liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount thereof unless it is duly paid by the company.
(4)If any company fails to comply with the requirements of subsection (1), it shall be guilty of an offence.

42. Improper use of word "Limited" or "Incorporated" an offence

Any individual trading or carrying on business under a name or title of which the word "Limited" or "Incorporated" is the last word, unless duly incorporated under this Act or any other law, commits an offence.

Memorandum of association

43. Requirements for memorandum of association

(1)The memorandum of the company shall reflect the following—
(a)the name of the company;
(b)the objects of the company;
(c)that the liability of the members is limited;
(d)in the case of a company limited by shares the amount of share capital with which the company is to be registered and the division thereof into shares of a fixed amount;
(e)in the case of a company limited by guarantee—
(i)that the liability of the members is limited as stated in subparagraph (ii);
(ii)that each member undertakes to contribute to the assets of the company in the event of the company being wound up while he is a member or within one year of its winding-up, for payment of the debts and liabilities of the company contracted before he ceases to be a member, and of the costs, charges and expenses of the winding-up, and for adjustment of the rights of the contributions among the members, such amount as may be required, not exceeding a specified amount but not less than one lilangeni.
(2)No subscriber to the memorandum of a company limited by shares may take less than one share.
(3)Each subscriber to the memorandum of a company limited by shares must write in words opposite his name the number of shares he takes.

44. Memorandum may contain special conditions

The memorandum of a company may, in addition to the requirements of section 43, contain any special conditions which shall apply to the company, and the requirements, if any, additional to those prescribed in this Act for the alteration of such conditions.

45. Form and signing of memorandum

(1)The memorandum shall be in the prescribed form.
(2)The Memorandum shall be signed and dated, in the presence of at least one attesting witness, by each subscriber and opposite every such signature of a subscriber or a witness there, shall be written in legible characters his full name, occupation, and full residential or business address.

46. Alteration of memorandum as to objects

(1)A company may, by special resolution, alter the provisions of its memorandum with respect to the statement of the company’s objects.
(2)If any application is made to the court by the holders of not less in the aggregate than fifteen (15) per cent in nominal value of the company’s issued share capital or of any class thereof or, if the company is one limited by guarantee, not less than fifteen (15) per cent of the company’s members, for any alteration in terms of subsection (1) to be cancelled, the alteration shall not have effect except in so far as it is confirmed by the court:Provided that an application shall not be made by any person who has consented to or voted in favour of the alteration.
(3)An application under subsection (2) shall be made within twenty-one (21) days after the date on which the resolution altering the condition contained in the memorandum of the company’s objects was passed, and may be made on behalf of the persons entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.
(4)On such application, the court may make an order confirming the alteration either wholly or in part and on such terms and conditions as it thinks fit, and may, if it thinks fit, adjourn the proceedings in order that an arrangement may be made to the satisfaction of the court for the purchase of the interests of dissentient member, and may give such directions and make such order as it may think expedient for facilitating or carrying into effect any such arrangement:Provided that no part of the capital of the company shall be expended in any such purchase.
(5)Where a company passes a resolution altering its objects—
(a)if no application is made with respect thereto under this section, it shall within 15 days from the end of the period for making such application, deliver to the Registrar a copy of its memorandum as altered; and
(b)if such an application is made it shall—
(i)forthwith give notice of that fact to the Registrar, and
(ii)within 15 days from the date of any order cancelling or confirming the alteration, deliver to the Registrar a certified copy of its memorandum as altered.
(6)The court may at any time extend the time for the delivery of documents to the Registrar under subsection (5)(b) for such period as the court may think proper.
(7)If a company makes default in giving notice or delivering any documents to the Registrar as required by subsection (5), the company shall be guilty of an offence and liable to a fine.
(8)The validity of an alteration of the provisions of a company’s memorandum with respect to the object of the company shall not be questioned on the ground that it was not authorised in terms of subsection (1) except in proceedings taken for the purpose (whether under this section or otherwise) before the expiration of twenty-one (21) days after the date of resolution in that behalf; and where any such proceedings are taken otherwise than under this section, subsections (5), (6) and (7) shall apply in relation thereto as if they had been taken under this section and as if an order declaring the alteration invalid were an order cancelling it and as if an order dismissing the proceeding were an order confirming the alteration.

47. Alteration of memorandum as to special conditions and other provisions

(1)Subject to subsection (3) and unless prohibited by the condition itself, a special condition contained in the memorandum may be altered by special resolution or in the manner prescribed in such special condition.
(2)Any private company may at any time by special resolution and with the written consent of each person being then a director of the company, incorporate in its memorandum the provision referred to in section 44.
(3)A private company may, by special resolution, alter or remove the provision referred to in section 44 and contained in its memorandum:Provided that the alteration or removal is confirmed by the court if it is satisfied that such alteration or removal would be just and quitable.
(4)Any other provision of the memorandum of a company may be altered by special resolution.
(5)Nothing in this section shall authorise any alteration of a memorandum constituting a variation or abrogation of the special rights of any class of members save and except that such rights may be altered or abrogated in the manner prescribed in the memorandum for such variation or abrogation.

Articles of association

48. Companies to have articles of association

(1)There shall be registered with the memorandum of a company, articles of association, prescribing articles of the company.
(2)The articles of a company incorporated after the commencement of this Act shall—
(a)in the case of a public company limited by shares, consist of the articles contained in Table A of Schedule 1;
(b)in the case of a private company limited by shares, consist of the articles contained in Table B of Schedule 1; and
(c)in the case of a company limited by guarantee, consist of the articles contained in Table C of Schedule 1,
subject to such additions, omissions and modifications as are stated in the articles, and the articles contained in the said Schedule shall, so far as applicable and not excluded or modified, apply to that company.
(3)After the commencement of this Act, no condition contained in the articles of a company for compulsory loans to be made by members of the company to the company shall be of any force or effect.

49. Contents and forms of articles of association

(1)The articles shall be in the form prescribed in section 48.
(2)The articles shall be signed and dated by each subscriber to the memorandum in the presence of at least one attesting witness and there shall be written in legible characters, his full name, occupation and full residential or business address.

50. Consolidation of articles

A company may at any time after the registration of its articles, submit to the Registrar a document in the prescribed form, containing a consolidated and full statement of all the articles applying to the company together with a certificate by a notary public to the effect that the articles of the company have been truly stated and, on payment of the prescribed fee, the Registrar shall endorse on that document a certificate to the effect that the articles stated therein constitute the articles of the company as at the date of the certificate.

51. Alteration of articles

Subject to this Act and to the conditions contained in its memorandum, a company may by special resolution, alter or add to its articles, and any alteration or addition so made shall be as valid as if originally contained therein, and be subject in like manner to alteration by special resolution.

Registration and incorporation

52. Registration of memorandum and articles

(1)The memorandum and the articles together with either a duplicate original or a printed notarial copy, shall be delivered to the Registrar.
(2)Upon payment of the prescribed fees the Registrar shall, if the memorandum and articles are in accordance with the provisions of this Act, register the same, and shall return to the company a duplicate, original or one notarial copy of the memorandum and of the articles with the date of registration endorsed thereon.
(3)Upon the registration of the memorandum and articles of a company, the Registrar shall allocate a registration number to the company concerned.

53. Certificate of incorporation and its value as evidence

(1)Upon the registration of the memorandum and articles of a company, the Registrar shall certify under his hand that the company is incorporated and the date of such incorporation.
(2)A certificate of incorporation issued by the Registrar in respect of any company shall upon its mere production, in the absence of proof of fraud, be conclusive evidence that all the requirements of this Act in respect of registration and of matters precedent and incidental thereto, have been complied with, and that the company is a company duly incorporated under this Act.
(3)A solemn declaration by an attorney of the High Court of Swaziland, engaged in the formation of a company, or by a person named in the articles as a director or secretary of the company, of compliance with all or any of the said requirements shall be produced to the Registrar, and the Registrar may accept such a declaration as sufficient evidence of compliance.

54. Effect of incorporation on company and members

(1)From the date of incorporation stated in the certificate of incorporation, the subscribers of the memorandum together with such other persons as may from time to time become members of the company, shall be a body corporate with the name stated in the memorandum, capable of exercising all the functions of an incorporated company, and having perpetual succession, but with liability (if any) on the part of the members to contribute to the assets of the company in the event of its being wound up as provided by this Act.
(2)The memorandum and articles shall bind the company and the members thereof to the same extent as if they respectively had been signed by each member, to observe all the provisions of the memorandum and of the articles, subject to the provisions of this Act.

55. Members may become liable where membership reduced below minimum

Where at any time the number of members of a public company is reduced below two and it carries on business for more than six (6) months while the number is so reduced, every person who is a member of the company during that time that it so carried on business after six (6) months and is cognisant of the fact that it is carrying on business with fewer than two (2) members, shall severally be liable for the payment of the debts of the company contracted during that time and may be severally sued therefor.

56. Members’ rights to copies of memorandum and articles

(1)A company shall send to every member at his request and on payment of such amount as the company may determine, a copy of its memorandum and of its articles, or shall, if so requested, afford to a member or his duly authorised agent adequate facilities for making a copy of such memorandum and articles.
(2)Any company which fails to comply with any request under subsection (1), shall be guilty of an offence.

Incidental matters

57. Issued copies of memorandum or articles to embody alterations

(1)Every copy of the memorandum or articles of a company issued after the date on which any alteration has been made thereto, shall include the alteration.
(2)A company which at any time after the date of any such alteration issues a copy of its memorandum or articles which does not include the alteration, shall be guilty of an offence.

58. Contracts by companies

(1)Contracts on behalf of a company may be entered into in the following manner—
(a)any contract which if made between individual persons would by law be required to be in writing signed by the parties to be charged therewith may be made on behalf of the company in writing signed by any person acting under its authority, expressed or implied, and may in the same manner be varied or discharged;
(b)any contract entered into by a person, institution or body which is duly authorised by the company must be in writing and signed by such person, or institution or body.
(2)All contracts made in accordance with this section shall be effectual in law and shall bind the company and its successors and all other parties thereto.

59. Promissory notes and bills of exchange

A bill of exchange or promissory note shall be deemed to have been made, accepted or endorsed on behalf of a company if made, accepted or endorsed in the name of or by or on behalf or on account of the company by any person acting under its authority.

60. Service of documents upon companies

Any notice, order or other document which by this Act may be or is required to be served upon any company, including a foreign company, may be served by delivering it at the registered office or sending it by registered post to the postal address of the company.

61. Arbitration between companies and others

(1)A company may agree to refer and may refer to arbitration any existing or future difference between itself and any other company or person.
(2)A Company or person which is a party to the arbitration may delegate to the arbitrator power to settle or determine any matter capable of being lawfully settled or determined by the company itself or by their directors or other managing body.

Deregistration

62. Cancellation of registration of memorandum and articles

(1)If the Registrar has reasonable cause to believe that a company is not carrying on business or is not in operation, he shall, in accordance with subsection (7), send to the company by registered post a letter enquiring whether it is carrying on business or is in operation.
(2)If the Registrar does not within one month after sending the letter receive any answer thereto or receives an answer to the effect that the company is not carrying on business or is not in operation, he shall publish in the Gazette and send to the company by registered post a notice that at the expiration of two months from the date of that notice the company mentioned therein will, unless good cause is shown to the contrary, be deregistered.
(3)If a company fails for a period of more than two years to lodge with the Registrar the annual return required by section 151 and he has reason to believe that the company is not carrying on business or is not in operation, the Registrar shall publish in the Gazette and send to the company by post such notice as is referred to in subsection (2).
(4)At the expiration of the period mentioned in any notice referred to in subsection (2) or (3) or upon receipt from any company of a written statement signed by every director thereof to the effect that the company has ceased to carry on business and has no assets or liabilities, the Registrar shall, unless good cause to the contrary is shown by the company, a creditor or any interested person, deregister the company and shall give notice to that effect in the Gazette, and the date of the publication of such notice in the Gazette shall be deemed to be the date of deregistration:Provided that the liability of every director, officer and member of the company shall continue and may be enforced as if the company had not been deregistered.
(5)
(a)When any company has been deregistered the books and papers of the company may be disposed of in such way as the Registrar may direct.
(b)After five (5) years from the deregistration of a company, no responsibility shall rest on any person to whom the custody of the books and papers has been committed, by reason of the same not being forthcoming to a person claiming to be interested therein.
(6)
(a)The court may, on application by any interested person or the Registrar, if it is satisfied that the company was at the time of its deregistration carrying on business or was in operation, or otherwise that it is just that the said registration be restored, make an order that such company’s registration be restored accordingly, and thereupon the company shall be deemed to have continued in existence as if it had not been deregistered.
(b)Any such order may contain such directions and make such provision as the court deems just for placing the company and all other persons in the position, as nearly as may be, as if the company had not been deregistered.
(7)Any letter or notice under this section shall be addressed to the company at its postal address, its registered office and to the care of any directors or officers or auditors of the company whose names and addresses are known to the Registrar.

Chapter V
Share capital, reduction of capital, dealing by a company in own shares, allotment and issue of shares, corporate distributions, members and register of members, debentures, transfers, and restrictions on offering shares for sale share capital

Share capital

63. Share capital shall be divided into par value shares

The share capital of a company shall be divided into shares having a par value.

64. Company may alter share capital and shares

(1)Subject to sections 47 and 94, a company limited by shares if so authorised by its articles, may by special resolution
(a)increase its share capital by new shares of such amount as it thinks expedient;
(b)consolidate and divide all or any part of its share capital into shares of larger amount than its existing shares;
(c)sub-divide its shares, or any of them, into shares of smaller amount than is fixed by the memorandum;
(d)cancel shares which at the time of the passing of the resolution in that behalf, have not been taken or agreed to be taken by any person and diminish the amount of its authorised share capital by the amount of the shares so cancelled;
(e)convert any of its shares, whether issued or not, into shares of another class.
(2)A cancellation of shares under subsection (1)(d) shall not be deemed to be a reduction of capital within the meaning of this Act.

65. Premiums received on issue of shares to be share capital and limitation on application thereof

(1)Where a company issues shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount or value of the premium on those shares shall be transferred to an account to be called the "share premium account", and this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the share premium account were paid-up share capital of the company.
(2)Where assets are acquired by the issue of shares of a company, such assets shall be valued and such value shall be properly recorded in the books of the company and if such value of the assets is more than the par value of such shares, the difference between the par value of the shares and the value of the assets so acquired shall be transferred to the share premium account.
(3)The share premium account may, notwithstanding subsection (1), be applied by the company in paying up unissued shares of the company to be issued to members of the company as fully paid capitalisation shares or in writing off—
(a)the preliminary expenses of the company; or
(b)the expenses of, or the commission paid or discount allowed on, the creation or issue of any shares or debentures of the company,
or in providing for the premium payable on redemption of any redeemable preference shares or of any debentures of the company.
(4)This section shall as from six (6) months after the date of its commencement, apply to any company in respect of any balance of share premium as at the date of commencement of this Act.

66. Payment of interest out of capital in certain cases

(1)Where any shares of the company are issued for the purpose of raising money to defray the expenses of the construction of works or buildings or for the provision of plant, which cannot be made profitable for a lengthy period, the company may pay interest on the share capital for the period and subject to the conditions and restrictions in this section mentioned, and may charge the same to capital as part of the cost of construction of the works or buildings or the provision of plant.
(2)No such payment shall be made under subsection (1) unless it is authorised by the articles or by special resolution of the company, and the sanction of the court has first been had and obtained.
(3)The court may, on application for an order sanctioning such payment at the expense of the company
(a)appoint an expert to enquire into and report to it on the circumstances of the case and may before making such appointment require the company to give sufficient security for the payment of the costs of the enquiry; and
(b)having regard to all the circumstances of the case, make an order on such terms and conditions as it thinks fit.
(4)Any such payment shall be made only for such period as may be determined by the court and such period shall in no case extend beyond the close of the half-year next after the half-year during which the works or buildings have been actually completed or the plant provided.
(5)The rate of interest shall in no case exceed twelve (12) per cent per annum or such lower rate as may for the time being be determined by the court.
(6)The payment of the interest shall not operate as a reduction of the amount paid up on the shares in respect of which it is paid.
(7)For the purposes of subsection (4), the expression ‘half-year’ in relation to a company, means the period of six months commencing on the first or ending on the last day of the financial year of that company.

67. Restriction of power to pay commission and discounts; return to Registrar

(1)A company may pay commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares of the company, or of his procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares of the company if—
(a)the payment of the commission is authorised by the articles; and
(b)the commission paid or agreed to be paid does not exceed ten (10) per cent of the price at which shares are issued or any lesser rate fixed by the articles; and
(c)the amount or rate per cent of the commission paid or agreed to be paid is—
(i)in the case of shares offered to be public, disclosed in the prospectus; or
(ii)in the case of shares not offered to the public, disclosed in a statement in the prescribed form and where any circular or notice, not being a prospectus, inviting subscription for shares is issued, also disclosed in that circular or notice; and
(d)the number of shares for which persons have agreed, for a commission, to subscribe absolutely, is disclosed in the manner aforesaid.
(2)The statement referred to in subsection (1)(c)(ii) shall be lodged with the Registrar for registration before the payment of the commission to which the statement relates.
(3)Save as provided for in this section and subject to section 68, no company shall apply any of its shares or capital money either directly or indirectly in payment of any commission, discount or allowance to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares of the company, or of his procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares of the company, whether the shares or money be so applied by being added to the purchase price of any property acquired by the company or to the contract price of any work to be executed for the company or the money be paid out of the nominal purchase price or contract price, or otherwise.
(4)Nothing in this section shall affect the power of any company to pay such brokerage as it has been lawful for a company to pay.
(5)A vendor to, promoter of, or other person who received payment in money or shares from a company shall have and shall be deemed always to have had power to apply any part of the money or shares so received in payment of any commission, the payment of which, if made directly by the company, would have been lawful under this section.
(6)If default is made in complying with the requirements of subsection (2) relating to the lodging of the statement referred to therein with the Registrar, the company and every director and officer of the company who knowingly is a party to the default, shall be guilty of an offence.

68. Issue of shares at a discount

(1)A company may issue at a discount shares of the company of a class already issued if the following conditions have been complied with—
(a)such issue has been authorised by special resolution of the company specifying the maximum rate of discount at which the shares are to be issued;
(b)not less than one (1) year must at the date of issue have elapsed since the date of which the company became entitled to commence business or the date of the first issue of the class of shares; and
(c)such issue has been sanctioned by the court.
(2)The shares to be issued at a discount must be issued within one month after the date on which the issue is sanctioned by the court or within such extended time as the court may allow.
(3)The court may on application for an order sanctioning any such issue, having regard to all the circumstances of the case, make an order on such terms and conditions as it thinks fit.
(4)Every prospectus relating to the issue of shares by the company after the issue of the shares at a discount under this section shall contain particulars of the discount allowed on the issue of those shares and of so much of that discount as has not been written off at the date of the issue of the prospectus.
(5)If default is made in complying with the requirements of subsection (4), the company, and every director and officer of the company who knowingly is a party to the default, shall be guilty of an offence.

69. Reduction of capital by special resolution

(1)A company limited by shares may by special resolution reduce its share capital in any way other than paying off capital in installments or in future payments, if—
(a)it is so authorised by its articles;
(b)it has no creditors or all its creditors have consented to the reduction of capital; and
(c)the reduction of capital affects all its shares or any class of shares proportionally.
(2)An affidavit, in the form prescribed and accompanied by the prescribed fee, by a director or officer of the company to the effect that the company as at the date of the special resolution has no creditors or that all the creditors have consented to the proposed reduction of capital and that all its shares or all the shares of the class concerned are affected proportionally by it, shall be annexed to the copy of the special resolution lodged with the Registrar for registration together with the written consents of creditor.
(3)In this section, "creditor", in relation to a company, means every creditor of the company who at the date of the special resolution referred to in subsection (1) is entitled to any claim which, if such that date were the commencement of the winding-up of the company, would be admissible in proof against the company.

70. Reduction of capital confirmed by court

(1)Where for any reason a reduction of share capital of a company having a share capital cannot be effected under section 69, the company may, if so authorised by its articles, by special resolution and subject to confirmation by the court, reduce its share capital in any way, and in particular (without prejudice to the generality of the power hereby conferred) may—
(a)cancel any paid-up share capital which is lost or not represented by available assets; or
(b)pay off any paid-up share capital which is in excess of the wants of the company.
(2)Where a company has passed a special resolution for reducing share capital, it shall within sixty (60) days apply to the court for an order under this section confirming the reduction.

71. Creditors and objections to reduction of capital

(1)Where the proposed reduction of share capital under section 69 involves the payment to any shareholder of any paid-up share capital, and in any other case if the court so directs, every creditor of the company who at the date fixed by the court is entitled to any claim which, if that date were the commencement of the winding-up of the company, would be admissible in proof against the company, shall be entitled to object to the reduction.
(2)The court shall, unless it otherwise decides, or only to the extent that it may decide, having regard to any special circumstances, settle a list of creditors so entitled to object and for that purpose shall ascertain as far as possible, without requiring an application from any creditor, the names of those creditors and the nature and amount of their claims, and may order the publication of a notice fixing a period or periods within which creditors not entered on the list are to claim to be so entered or are to be excluded from the right of objecting to the reduction.
(3)Where a creditor entered on the list and whose claim is not discharged or determined, does not consent to the reduction, the court may, if it thinks fit, dispense with the consent of that creditor on the company securing the payment of his claim by appropriating, as the court may direct, an amount therefore as follows—
(a)if the company admits the full amount of his claim, or though not admitting it, is willing to provide for it, then the full amount of the claim; or
(b)if the company does not admit or is not willing to provide for the full amount of the claim, or if the liability is contingent or the amount not ascertained, then an amount fixed by the court after a like enquiry and adjudication as if the company were being wound up by the court.

72. Power of court as to order confirming reduction of capital

(1)On an application under section 69 the court may make an order, on such terms and conditions as it thinks fit, confirming the reduction or may grant a rule nisi calling on all persons concerned to show cause why such an order shall not be granted, and where the proposed reduction of share capital involves the payment to any shareholder of any paid-up share capital, the court shall grant such a rule nisi.
(2)The court shall not make an order confirming the reduction or confirming a rule nisi referred to in subsection (1) unless it is satisfied that every creditor of the company who under section 71 is entitled to object to the reduction, has consented to the reduction or that his debt or claim has been discharged or has determined or has been secured.
(3)The court making any order confirming a reduction capital by a company may make an order requiring the company to publish as the court directs the reasons for reduction or such other information in regard thereto as the court may think expedient with a view to giving proper information to the public and, if the court thinks fit, the causes which led to the reduction.
(4)The court making an order confirming a reduction of capital by a company involving the payment to any shareholder of any paid-up share capital in installments or future payments may make an order to the effect that—
(a)no proposed instalment or future payment shall be paid out unless it has been on each occasion authorised by the Registrar in writing;
(b)the Registrar shall issue such written authority only after the company has on each occasion lodged with him an affidavit, in the form prescribed (and accompanied by the prescribed fee) by a director or officer of the company to the effect that as at the date of the lodging of the affidavit the company has no creditors or that all the creditors have consented to the payment of the proposed instalment or future payment, the written consents of creditors, if any, to be annexed to the said affidavit; and
(c)if the company is not able to furnish such affidavit, it may apply to the court for an order sanctioning the payment of the proposed instalment or future payment.
(5)In an application for an order under subsection (4)(c), the court may grant an order on such terms and conditions as it thinks fit and may exercise all the powers provided by this section as if it were an application for confirmation of a reduction of capital.

73. Special provisions as to special resolutions for the reduction of capital

(1)Every special resolution for the reduction of the share capital of a company shall be in the prescribed form and shall set out the existing share capital, the particulars of the proposed reduction of capital and the resultant state of the share capital of the company.
(2)Every such special resolution shall be taken to be a special resolution for the alteration of the memorandum of a company.
(3)The Registrar shall register, on payment of the prescribed fee, any special resolution for the reduction of the share capital of a company under section 70 upon the lodging with him of the order of the court confirming the reduction of capital or a certified copy of such order.

74. When reduction of capital effective

No company shall act upon any special resolution for the reduction of capital before the date on which it is registered by the Registrar but such resolution may specify a date, not earlier than the date of its passing, as from which the reduction of capital will have retrospective effect.

75. Publication of reduction of capital

A company shall cause to be published in the Gazette a notice of reduction of its capital in respect of every special resolution for the reduction of capital registered by the Registrar within two months after the date of such registration.

76. Offences as to reduction of capital

Any director or officer commits an offence if he—
(a)wilfully conceals the name of any creditor entitled to object to a proposed reduction of capital; or
(b)wilfully misrepresents the nature or amount of the debt or claim of any creditor; or
(c)aids, abets or is privy to any such concealment or misrepresentation.

77. Acquisition by company of own shares

(1)Subject to the provisions of this section and any other applicable law, a company may by special resolution of the company approve the acquisition of shares issued by the company.
(2)The approval by special resolution may be general approval or a specific approval for a particular acquisition.
(3)If the approval is general approval, it shall be valid only until the next annual general meeting of the company, but it may be varied or revoked by special resolution by any general meeting of the company at any time prior to such annual general meeting.
(4)A company shall not make any payment in whatever form to acquire any share issued by the company if there are reasonable grounds for believing that—
(a)the company is, or would after the payment be unable to pay its debts as they become due in the ordinary course of business; or
(b)the consolidated assets of the company fairly valued would after the payment be less than the consolidated liabilities of the company.
(5)In the case of acquisition of par value shares issued by the company, the issued capital shall be decreased by an amount equal to the par value of the shares so acquired.
(6)If par value shares are acquired at a premium over the par value, the premium may be paid out from reserves, including statutory non-contributable reserves.
(7)Shares issued by a company and acquired under this section shall be cancelled as issued shares and restored to the status of authorised shares forthwith.
(8)Shares in the capital of a company may not be acquired under this section if, as a result of such acquisition, there would no longer be any shares in issue other than convertible or redeemable shares.

78. Financial assistance by a company for acquisition of its own shares or of holding company

(1)A company shall not give, directly or indirectly, and whether by means of a loan guarantee, the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription made or to be made by a person of or for any shares of the company, or where the company is a subsidiary company of its holding company.
(2)If a company acts in contravention of this section every officer of it who is in default is guilty of an offence and is liable to imprisonment or a fine or both.
(3)It shall be a defence in any proceedings under this section against any director or officer of a company if it is proved that the accused was not a party to the contravention.

79. Meaning of "financial assistance"

In this chapter financial assistance means—
(i)financial assistance given by way of gift;
(ii)financial assistance given by way of guarantee, security or indemnity, other than an indemnity in respect of the indemnity in respect of the indemnifier’s own neglect or default, or by way of release or waiver;
(iii)financial assistance given by way of a loan or any other agreement under which any of the obligations of the person giving the assistance are to be fulfilled at a time where agreement or any obligation of another party to the agreement remains unfulfilled, or by way of the novation of, or the assignment of rights arising under a loan or such other agreement; or
(iv)any other financial assistance given by a company the net assets of which are thereby reduced to a material extent or which has no net assets.

80. Transactions exempt from the provision of section 78

Nothing in section 78 shall be deemed to prohibit any of the following transactions—
(a)the provision of financial assistance for the acquisition of shares in a company by the company or its subsidiary in accordance with the provisions of section 77 for the acquisition of such shares;
(b)in the interests of empowerment, the making by a company of loans to bona fide Swazi citizens other than directors, with a view to enabling the bona fide Swazi citizens to purchase or subscribe for shares of the company, or its holding company, to be held by themselves beneficially and not as nominees of the company or any other person.
(c)the provision by a company, in accordance with any scheme for the time being in force, of money for the purchase or subscription of shares of the company or its holding company to be held for the benefit of persons bona fide in the employment of the company, including any director holding a salaried employment in the company;
(d)the making by a company of loans to persons, other than directors, bona fide in the employment of the company with a view to enabling the persons to purchase or subscribe for shares of the company or its holding company to be held by themselves beneficially and not as nominees of the company by any other person;
(e)the payment by a company of a lawful dividend on its shares notwithstanding that the dividend received by a shareholder is used to discharge any liability on his shares or to repay money borrowed for the purpose of subscribing or purchasing shares;
(f)the allotment of bonus shares;
(g)a reduction of capital in accordance with the provisions of this Act;
(h)a redemption or purchase of shares made in accordance with the provisions of this Act;
(i)anything done in pursuance of an order of the court under section 265.

81. Power of company to give financial assistance

(1)A company may give financial assistance in the acquisition of its shares or those of its holding company in accordance with this section.
(2)A company shall not give financial assistance if there are reasonable grounds for believing that—
(a)the company is or, after the giving of the financial assistance, would be unable to pay its liabilities as they become due; or
(b)the realisable value of the company’s assistance, after giving the financial assistance, would be less than the aggregate of the company’s liabilities and stated capital of all classes.
(3)Unless the company proposing to give the financial assistance is a wholly-owned subsidiary, the giving of assistance under this section shall be approved by special resolution of the company in general meeting.
(4)Where such a resolution has been passed, an application may be made to the court for the cancellation of the resolution by the holders of not less in the aggregate than ten (10) per cent in nominal value of the company’s issued share capital or any class of it:Provided that the application shall not be made by a person who has consented to or voted in favour of the resolution.

82. Redemption generally

(1)Subject to the provisions of this Act, a company limited by shares may, if authorised to do so by its articles, issue shares which are to be redeemed or are liable to be redeemed at the option of the company or the shareholder.
(2)No redeemable shares may be issued at a time when there are no issued shares of the company which are not redeemable.
(3)Redeemable shares may not be redeemed unless they are fully paid, and the terms of redemption shall provide for payment on redemption.
(4)Redeemable shares may only be redeemed out of profits of the company which would otherwise be available for dividends or out of the proceeds of a fresh issue of shares made for the purposes of redemption.
(5)Any premium payable on redemption must be paid out of the distributable profits of the company or the company’s share premium account.
(6)If any such shares are redeemed otherwise than out of the proceeds of a fresh issue, there shall out of profits which would otherwise have been available for dividends, be transferred to a reserve fund, to be called the "capital redemption reserve fund", a sum equal to the nominal amount of the shares redeemed, and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the capital redemption reserve fund were share capital of the company.
(7)Subject to subsection (8), redemption of shares may be effected on such terms and in such manner as may be provided by the company’s articles.
(8)Shares redeemed under this section shall be treated as cancelled on redemption, and the amount of the company’s issued share capital shall be diminished by the nominal value of those shares accordingly; but the redemption of shares by a company is not to be taken as reducing the amount of the company’s authorised share capital.
(9)Without prejudice to subsection (8), where a company is about to redeem shares, it has power to issue shares up to the nominal value of the shares to be redeemed as if those shares had never been issued.
(10)The capital redemption reserve fund may, notwithstanding anything in this section, be applied by the company in paying up unissued shares of the company to be issued to members of the company as fully paid-up shares.
(11)If a company has redeemed any redeemable shares, it shall within thirty days thereafter give notice thereof in the prescribed form to the Registrar specifying the shares so redeemed.
(12)If default is made in complying with subsection (5), the company shall be guilty of an offence.

83. Conversion of preference shares into redeemable preference shares

If a company converts any of its shares into shares which are or at the option of the company, are liable to be redeemed, section 82 shall apply to such shares.

84. Power of company to purchase shares

(1)Subject to the following provisions of this section, a company may, if authorised to do so by its articles, purchase its own shares (including any redeemable shares).
(2)A company may not under this section purchase its own shares if as a result of the purchase there would no longer be any member of the company holding shares other than redeemable shares.
(3)A company shall not purchase its own shares unless the purchase has first been authorised by special resolution of the company in general meeting.
(4)Payment for the acquired shares by the company shall be made out of the company’s distributable profits.

85. Disclosure by company of purchase of own shares

(1)Within the period of thirty (30) days beginning with the date on which any shares purchased by a company under this Act are delivered to it, the company shall deliver to the Registrar for registration a return in the prescribed form stating with respect to shares of each class purchased the number and nominal value of those shares and the date on which they were delivered to the company.
(2)In case of a public company, the return shall also state—
(a)the aggregate amount paid by the company for the shares; and
(b)the maximum and minimum prices paid in respect of shares of each class purchased.
(3)Where a company enters into a contract for the purchase of its own shares, the company shall keep at its registered office—
(a)if the contract is in writing, a copy of it; and
(b)if the contract is not writing, a memorandum of its terms.
(4)Every copy and memorandum so required to be kept shall, during business hours (subject to such reasonable restrictions as the company may in general meeting impose, provided that not less than two (2) hours in each day are allowed for inspection) be open to inspection without charge—
(a)by any member of the company; and
(b)if it is a public company, by any other person.
(5)Where default is made in delivering to the Registrar any return required by this section, every officer of the company who is in default shall be guilty of an offence and liable to a fine.
(6)Where default is made in complying with subsection (3), or where an inspection under subsection (4) is refused, every officer who is in default shall be guilty of an offence and liable to a fine.
(7)In case of a refusal of an inspection required under subsection (4), the court may by order compel and immediate inspection.

86. The capital redemption reserve

(1)Where under this Act shares of a company are redeemed or purchased wholly out of the company’s profits, the amount by which the company’s issued share capital is diminished in accordance with section 82 on cancellation of the shares redeemed or purchased shall be transferred to the "the capital redemption reserve".
(2)Where the shares are redeemed or purchased wholly or partly out of the proceeds of a fresh issue and the aggregate amount of those proceeds is less than the aggregate nominal value of the shares redeemed or purchased, the amount of the difference shall be transferred to the capital redemption reserve.
(3)The provisions of this Act relating to the reduction of a company’s share capital apply as if the capital redemption reserve were paid-up share capital of the company, except that the reserve may be applied by the company in paying up unissued shares to be allocated to members of the company as fully paid bonus shares.

87. Nature of shares

The shares or other interest which any member has in a company shall be movable property, transferable in the manner provided by this Act and the articles of the company.

88. Shares not to be allotted or issued unless fully paid-up

(1)No company shall allot or issue any shares unless the full issue price of, or other consideration for, such shares has been paid to and received by the company.
(2)Notwithstanding subsection (1), a company may allot shares not fully paid-up for the purpose of their being offered for sale to the public as fully paid-up shares:Provided that—
(a)if such offer is not made within one (1) month from the date of such allotment or agreement, such allotment or agreement shall be void; or
(b)if such offer to the public is made but not accepted in full within two (2) months from the date of such allotment or agreement to allot, the allotment of, or the agreement to allot, such shares in respect of which the full issue price is not paid within the said period, shall be void.

89. Register and return as to allotments

(1)Every company having a share capital shall keep at its registered office or at the office where it is made up, a register of allotments of shares.
(2)Every company shall forthwith after the allotment of any shares enter in the register of allotments the names and addresses of the allottees, the number of shares allotted to each of them, the amount paid for such shares and in the case of shares allotted and fully paid-up otherwise than for cash, full particulars of the consideration in respect of which the allotment was made and of the transaction or contract concerned.
(3)If a company makes any allotment of its shares, the company shall within one (1) month thereafter lodge with the Registrar
(a)a return in the form prescribed stating full particulars of the nominal and previously issued share capital and the number and description of the shares comprised in the allotment;
(b)in the case of shares allotted otherwise than for cash, a copy of the contract in writing constituting the title of the allottee to the allotment, together with any contract of sale, or for service or other consideration in respect of which that allotment was made (or if such contract is not in writing, a memorandum containing full particulars of such contract), and a return in the prescribed form stating the number and description of the shares so allotted, the name and address of such allottee and the consideration for which they have been allotted.
(4)If any allotment of shares becomes void as a result of any provision of this Act, the company shall within one (1) month after the date on which such allotment becomes void, lodge a notice in the prescribed form to that effect with the Registrar.
(5)If default is made in complying with any of the requirements of this section, the company, and every director or officer of the company who knowingly is a party to the default, shall be guilty of an offence.
(6)The provisions of section 107 shall apply to the inspection of the furnishing of copies of or of extracts from such register of allotments.

90. Certificate of shares or stock

(1)A certificate signed by at least one director specifying any shares or stock of that company held by any member, shall be prima facie evidence of the title of the member to such shares or stock.
(2)Any such signatures may be affixed to the certificate by autographic or mechanical means.

91. Numbering of shares and share certificates

(1)The shares of a company having a share capital shall, except in the case of shares or any particular class of shares which rank equally for all purposes, be distinguished by appropriate numbers.
(2)No provision in the articles of a company registered before the commencement of this Act, requiring shares of that company to be numbered, shall apply in respect of shares which in terms of subsection (1) are not required to have distinguishing numbers.
(3)Where shares are not distinguished by appropriate numbers, the certificates of such shares shall be so distinguished, and upon the registration of transfer of any such shares the certificate relating thereto, shall in addition to the distinguishing number, bear on its face such an endorsement, in the form of a reference number or otherwise, as will enable the immediately preceding holder of the shares to be identified.

92. Limitation of time for issue of certificates

(1)Every company shall within two (2) months or within such extended time, not exceeding one (1) month, as the Registrar on good grounds shown and on payment of the prescribed fee, may grant, after the allotment of any of its shares, debentures or debenture stock, complete and have ready for delivery the certificates of all shares, the debentures or the certificates of all debenture stock allotted.
(2)If default is made in complying with the requirements of subsection (1), any person entitled to the certificates of shares or debentures in question may, by notice in writing, call upon the company to make good of default, and if the company fails to comply with the notice within ten days after service thereof, the court may, on the application of such person, direct the company to make good the default within such time as it may specify and may direct that any costs of or incidental to the application shall be borne by the company or by any director or officer of the company responsible for the default.

93. Validation of irregular creation, allotment or issue of shares

(1)Where a company has purported to create, allot or issue shares and the creation, allotment or issue of such shares was invalid by virtue of any provision of this Act or any other law or of the memorandum or articles of the company or otherwise, or the terms of the creation, allotment or issue were inconsistent with or not authorised by any such provision, the court may, upon application made by the company or by any interested person and upon being satisfied that in all the circumstances it is just and equitable to do so, make an order validating the creation, allotment or issue of such shares or confirming the terms of the creation, allotment of issue thereof, subject to such conditions as the court may impose.
(2)The court shall, when making an order under subsection (1), direct that a copy thereof be lodged with the Registrar.
(3)Upon the registration of the copy of such order by the Registrar and after the payment of all prescribed fees, such shares shall be deemed to have been validly created, allotted or issued upon the terms of the creation, allotment or issue thereof and subject to the conditions imposed by the court.

94. Variation of rights attaching to shares

(1)If, in the case of a company the share capital of which is divided into different classes of shares, provision is made by the memorandum or articles for authorising the variation of the rights attached to any class of shares in the company, subject to the consent of any specified proportion of the holders of the issued shares of that class or the sanction of a resolution passed at a separate meeting of the holders of those shares, and in pursuance of the said provisions the rights attached to any such class of shares are at any time varied, the holders of not less in the aggregate than fifteen (15) per cent of the issued shares of that class, being persons who did not consent to or vote in favour of the resolution for the variation, may apply to the court to have the variation cancelled, and, where such application is made, the variation shall not have effect unless it is confirmed by the court.
(2)An application under this section shall be made within thirty (30) days after the date on which the consent was given or the resolution was passed, as the case may be, and may be made on behalf of the members entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.
(3)On any such application the court, after hearing the applicant and any other persons who apply to the court to be heard and appear to the court to be interested in that application, may, if it is satisfied, having regard to all the circumstances of the case, that the variation would unfairly prejudice the members of the class represented by the applicant, disallow the variation and shall, if not so satisfied, confirm the variation.
(4)The decision of the court on any such application shall be final.
(5)The company shall within fifteen (15) days after the making of an order by the court on any such application forward a copy of the order to the Registrar, and if default is made in complying with this provision, the company and every officer of the company who is in default shall be guilty of an offence an liable to a fine for every day during which the offence continues.
(6)The expression "variation" in this section includes abrogating and the expression "varied" shall be construed accordingly.

Corporate distributions

95. Dividends generally

(1)A company shall not declare or pay a dividend if—
(a)the company is, or would after the payment be, unable to pay its liabilities as they become due; or
(b)the realisable value of the company’s assets would be less than the aggregate of its liabilities and stated capital of all classes.
(2)Where a dividend is paid in contravention of this section—
(a)every director of the company who is in default shall be jointly and severally liable to restore to the company the total amount by which the payment contravenes this section, with interest on such amount at the prevailing legal rate;
(b)unless, within twelve months of the payment, the total amount with interest thereon shall be restored to the company by the directors in accordance with paragraph (a) of this subsection, every shareholder shall be liable to restore to the company the amount received by him in contravention of this section;
(c)if the directors of the company make restoration to the company in accordance with paragraph (a) of this subsection they shall have the right to be indemnified by any shareholder who has received any amount knowing that it contravenes this section to the extent of the amount received by him with interest thereon at the prevailing legal rate.
(3)Any shareholder, officer or creditor of the company may apply to the court for an interdict restraining a company from paying a dividend in contravention of this section.
(4)Any application by a shareholder or creditor shall he made in a representative capacity on behalf of himself and all other shareholders or creditors as the case may be, of the company and the provisions of section 228 of this Act shall apply.
(5)Subject to the foregoing subsections (1) to (4), a company may by ordinary resolution declare dividends in respect of any year or other specified period, but no dividend shall exceed the amount recommended by the directors.

96. Meaning of stated capital

(1)The stated capital of a company limited by shares shall consist of the sum of the following items—
(a)the total proceeds of every issue of shares for cash, including any amounts paid on calls made on partly-paid shares, without any deductions for expenses or commissions;
(b)the total value of the consideration, as stated in the agreement received for every issue of shares otherwise than for cash;
(c)the total amount on the share premium account and the capital redemption reserve fund; and
(d)the total amount which the company by special resolution shall have resolved to transfer to stated capital.
(2)The surplus of a company limited by shares shall be the amount by which its assets exceed its stated capital.

Members and register of members

97. Who are members of a company

(1)The subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company upon its incorporation, and shall forthwith be entered as members in its register of members.
(2)Every other person who agrees to become a member of a company and whose name is entered in its register of members, shall be a member of the company.
(3)A company shall, subject to its articles, enter in the register as a member, nomine officii of the company, the name of any person who submits proof of his appointment as the executor, administrator, trustee, curator or guardian in respect of the estate of a deceased member of the company or of a member whose estate has been sequestrated or of a member who is otherwise under disability or as the liquidator of any body corporate in the course of being wound up which is a member of the company, and any person whose name has been so entered in the register shall for the purposes of this Act be deemed to be a member of the company.

98. Trusts in respect of shares

A company shall not be bound to see to the execution of any trust, whether express, implied or constructive, in respect of any share.

99. Register of members

(1)A company shall keep a register of its member, and shall forthwith enter therein—
(a)the names and addresses of the members and, in the case of a company limited by shares, a record of the shares issued to each member, distinguishing each share by its number, if any, and by its class or kind, and of the amount paid or agreed to be considered as paid on the share of each member; and
(b)in respect of each member
(i)the date on which his name was entered in the register as a member, and
(ii)the date on which he ceased to be a member.
(2)The register of members shall be kept by recording the particulars required in any manner which forms a durable medium for accurately recording and reproducing such particulars; and adequate precautions shall be taken for their preservation and to guard against falsification.

100. Index to register of members

(1)A company having more than fifty members shall, unless the register of members is in such form as to constitute in itself an index, keep an index, of the names of the members of the company, and shall, within fourteen days after the date on which any alteration is made in the register of members, make any necessary alteration in the index.
(2)The index, shall be deemed to be a part of the register of members, shall in respect of each member, contain a sufficient indication to enable the account of that member in the register to be readily found.

101. Branch registers in foreign countries

(1)A company having a share capital may, if so authorised by its articles, cause to be kept in any foreign country, a register of members resident in any foreign country (in this Act called a "branch register").
(2)The company shall give the Registrar notice in the prescribed form of the situation of the office where any branch register is kept, and of any change in that situation, and of the discontinuance of the office in the event of its being discontinued.

102. Provisions as to branch register

(1)A branch register shall be deemed to be part of the company’s register of members (in this Act called the "principal register").
(2)A branch register shall be kept in the same manner in which the principal register is by this Act required to be kept except that the notice referred to in section 108 shall, for a reasonable time before the closing of the branch register, also be inserted in a newspaper circulating in the district of the country wherein the branch register is kept.
(3)The company shall transmit to its registered office a copy of every entry in its branch register as soon as may be after the entry is made and shall cause to be kept at its registered office, duly entered up from time to time, a duplicate of its branch register, and the duplicate shall for the purposes of this Act be deemed to be part of the principal register.
(4)The company may discontinue to keep any branch register, and shall thereupon transfer all entries in that register to some other branch register kept by the company or to the principal register.
(5)Subject to this Act and of any law relating to stamp duty, any company may by its articles make such provisions as it may think fit regarding the keeping of branch registers.

103. Register of members to be evidence

The Register of members of a company shall be prima facie evidence of any matters directed or authorised by this Act to be entered therein.

104. Where register of members to be kept

(1)The register of members of a company shall be kept at its registered office.
(2)A company’s register of members may be kept at any office of the company in Swaziland where the work of making it up is done, instead of at the company’s registered office, and if a company has arranged with some other person (in this section referred to as "the agent") for the making up of its register of members to be undertaken on behalf of the company by the agent, the register may be kept at the office of the agent in Swaziland at which the work is done instead of at an office of the company.
(3)Any index of the names of the members of a company to be kept in terms of section 100 shall at all times be kept at the same place where the register of members is kept, and if the company keeps a branch register under section 102 the duplicate of the branch register required by section 102(3) to be kept at the company’s registered office shall, notwithstanding anything in such subsection, at all times be kept at the same place where the company’s principal register is kept.
(4)Any company the register of members of which is not kept at its registered office shall notify the Registrar in the prescribed form of the place where such register is kept and of any change of the place.
(5)The provisions of this section relating to the register of members of a company and the provisions of this Act relating to the inspection or production of any such register or to the furnishing of copies of any such register or part thereof, shall apply to any agent by whom any such register is kept on behalf of a company in the same manner as they apply to the company.

105. Disposal of closed accounts in register

The parts of the register of members of a company pertaining to persons who have ceased to be members, in whatever manner kept under section 99, may be disposed of after the expiry of a period of fifteen (15) years after such persons have ceased to be members.

106. Offences in respect of register of members

Any company which or an agent referred to in section 104 who fails to comply with any provision of section 99, 100, 105, 102, 106 or 104 shall be guilty of an offence and shall be liable to fine.

107. Inspection of register of members

(1)The register of members of a company shall, except when closed under the provisions of this Act, during business hours (subject to such reasonable restrictions as the company in general meeting may impose, so that not less than two hours in each day be allowed for inspection) be open to inspection by any member or his duly authorised agent free of charge and by any other person upon payment for each inspection of an amount of twenty emalangeni or such other amount as the company may determine from time to time, provided that such amount shall not exceed ten (10) per cent of the minimum fee payable by companies in Swaziland.
(2)In the case of any such refusal or default the court may, on application, by order compel an immediate inspection of the register and index or direct that the copy or extract required shall be sent to the applicant requiring it and may direct that any costs of or incidental to the application shall be borne by the company or by any director or officer of the company responsible for the refusal or default.

108. Power to close register of members

A public company may, after giving notice of its intention to do so in the Gazette and in a newspaper circulating in Swaziland, close its register of members, or any part thereof relating to holders of any class of shares, for a period or periods not exceeding in the aggregate sixty (60) days in any year.

109. Rectification of register of members

(1)Any person concerned or the company or any member of the company, may apply to the court for rectification of the register if—
(a)the name of any person is, without sufficient cause, entered in or omitted from the register of members of a company; or
(b)default is made or unnecessary delay takes place in entering in the register the fact of any person having ceased to be a member.
(2)The application may be made in accordance with the rules of the court or in such other manner as the court may direct, and the court may either refuse it or may order rectification of the register.
(3)On any application under this section the court may decide any question relating to the titles of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or alleged members or between members alleged on the one hand and the company on the other hand, and generally may decide any question necessary or expedient to be decided for the rectification of the register.

Debentures

110. Creation and issue of debentures

A company, if so authorised by its memorandum or by its articles, may create and issue secured or unsecured debentures.

111. Security for debentures

(1)The binding of movable property as security for any debenture or debentures may be effected by—
(a)a deed of pledge and the delivery of the movable property concerned to one or more debenture-holders or to a trustee for debenture-holders;
(b)a notarial bond, collateral notarial bond or notarial surety bond executed in favour of one or more debenture-holders or of a trustee for debenture-holders; or
(c)the pledging of incorporeal rights by means of cession of such rights, whether present or future, in due and property form.
(2)The binding of immovable property may be effected by a mortgage bond or surety bond executed in favour of one or more debenture-holders or of a trustee for debenture holders.
(3)A wholly owned subsidiary shall be deemed to have the power to mortgage any of its property as collateral security for the issue of debentures by its holding company.

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

(1)A mortgage bond or notarial bond in pursuance of section 111 and subsequent transactions relating thereto shall, subject to the laws governing the registration of mortgage bonds and notarial bonds, be registered in a deeds registry.
(2)If any such bond is in favour of one or more debenture-holders, a certified copy of the debenture concerned shall be annexed to the said bond.
(3)If any such bond is in favour of one or more debenture-holders, a certified copy of the debenture concerned and of the trust deed by which the trustee is appointed and in which his rights and duties are defined, shall be annexed to the said bond.
(4)Certified copies of the debenture concerned and of any such trust deed, if any, shall be annexed to any deed of pledge where the debentures are secured by a pledge of movable property.

113. Debenture itself may be registered

If any debenture is executed before a notary public, it may, subject to section 112(1), be registered in a deeds registry in like manner as if it were a notarial bond.

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

In any bond or deed of pledge executed in favour of a trustee for debenture-holders generally, provision may be made that the debentures thereby secured or to be secured may be issued from time to time and at different dates, as the company may determine, but all such debentures, whether issued, shall rank in preference concurrently with one another as from the date on which the pledge was constituted or the bond was registered.

115. Rights of debenture-holders

(1)A holder of a debenture secured by a pledge or a bond executed in favour of a trustee and copy of the debenture annexed thereto, shall be entitled to enforce his rights under such debenture as soon as it has been issued to him in the same manner as if he were himself the pledge or the holder of such bond.
(2)A notice of the cession of any such debenture shall not be necessary in order to confer upon any cessionary the rights of the cedent.

116. Director or officer not to be trustee for debenture-holders

A director or officer of a company shall not be capable of being a trustee for the holders of debentures of that company.

117. Liability of trustee for debenture-holders

(1)Subject to the provisions of this sections, any provisions contained in a trust deed for securing an issue of debentures, or in any contract with the holders of debentures secured by a trust deed, shall be void in so far as it would have the effect of exempting a trustee from indemnifying him against liability for breach of trust where he fails to show the degree of care and diligence required of him as trustee, having regard to the provisions of the trust deed conferring on him any powers.
(2)Subsection (1) shall not have the effect of invalidating any release otherwise validly given in respect of anything done or any provision enabling such a release to be given—
(a)with the consent of a majority of not less than three-fourths in value of the debenture holders present and voting in person or by proxy at a meeting summoned for the purpose; and
(b)with respect to specific acts or omissions or on the trustee dying or ceasing to act.

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

(1)Where a company has redeemed any debentures previously issued, not being debentures convertible into shares of the company, it shall, unless its articles or the conditions of issue of such debentures expressly otherwise provide or the debentures have been redeemed in pursuance of any obligation on the part of the company to redeem them (not being an obligation enforceable only by the person to whom the redeemed debentures were issued or his successors in titled) have and be deemed at all times to have had power to keep the debentures alive for the purpose of re-issue, and, where a company has purported to exercise such a power, it shall have and be deemed at all times to have had power to re-issue the debentures either by re-issuing the same debentures or by issuing other debentures in their place, and upon such a re-issue the person entitled to the debentures shall have and shall be deemed at all times to have had the same rights and priorities as if the debentures had not previously been issued.
(2)Where with the object of keeping debentures alive for the purpose of re-issue, they have been transferred to a nominee of the company, a transfer from that nominee shall be deemed to be a re-issue for the purposes of this section.
(3)Where a company had deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit whilst the debentures remained so deposited.
(4)Nothing in this section shall prejudice any power reserved to a company by its debentures or the securities thereof, to issue debentures in the place of any debentures paid off or otherwise satisfied or extinguished.

119. Debenture to be described as secured or unsecured

No debenture, debenture certificate or prospectus relating to debentures shall be issued by a company unless the term "debenture" or such term denoting a debenture used therein is qualified by the word "secured" or "unsecured", as the case may be.

120. Form of debentures or debenture certificate

(1)No debenture or debenture certificate shall be issued by a company unless the conditions of the debenture concerned are stated on the debenture or on the debenture certificate.
(2)Any debenture or debenture certificate shall be signed by one director of the company and an officer of the company duly authorised thereto by the directors shall, in the case where the debenture concerned is not a bearer debenture and in the case of a debenture certificate specify the debentures, other than bearer debentures, of that company held by the person named therein.
(3)Any signature referred to in subsection (2) may be affixed to a debenture or debenture certificate by autographic or mechanical means.
(4)Any debenture or debenture certificate issued in terms of this section shall be prima facie evidence of the title thereto of the person named therein or, in the case of a bearer debenture, of the bearer thereof.

121. Register of pledges, cessions and bonds

Subject to the provisions of section 123, every company shall keep at its registered office a register of pledges, cessions, notarial bonds, mortgage bonds, and notarial debentures and enter therein all pledges, cessions, notarial bonds, mortgage bonds and notarial debentures affecting property of the company, giving in each case a short description of the property pledges, ceded or bound, the amount of the pledge, cession or bond and the names and addresses of the persons in whose favour any pledge cession, bond or debenture was executed or to whom any pledge has been delivered.

122. Register of debenture-holders

Subject to the provisions of section 123, every company shall keep at its registered office a register of debenture-holders showing the number of debenture issued and outstanding and whether or not they are payable to bearer and specifying the names and addresses of the holders, other than bearers, thereof.

123. Registers may be kept where made up

The provisions of section 104(2) and (4) relating to the register of members shall apply, mutatis mutandis, to the registers required to be kept under sections 121 and 122.

124. Inspection of registers and copies and extracts

(1)The provisions of section 97 relating to the inspection of the register of members shall apply, mutatis mutandis, to the registers to be kept under sections 121 and 122.
(2)A copy of any trust deed for securing any issue of debentures shall be transmitted to every holder of such debentures at his request on payment, in the case of a printed trust deed, of an amount of One Lilangeni or such lesser amounts as may be determined by the company, or when the trust deed has not been printed, or payment of an amount of one Lilangeni or such lesser amount as may be determined by the company for every page of the required copy.

125. Default in keeping of registers

A company which or an agent referred to in section 104(2) as applied by section 123 who fails to comply with any provision of section 121, 122 or 123 shall be guilty of an offence.

Forgery of certificates as to shares, debentures and other securities

126. Forgery, personation and unlawful engravings

Any person shall be guilty of an offence if he—
(a)with intent to defraud, forges, alters, offers, utters or disposes of, knowing it to be forged or altered, any certificate as to shares, debentures or other securities any broker’s transfer form, certified broker’s form, share warrant or coupon issued in pursuance of this Act (or any document purporting to be such share warrant or coupon); or
(b)by means of any such forged or altered certificate, form, share warrant, coupon or document, which he knows to be forged or altered, obtains or receives or endeavors to obtain or to receive any interest in any company or obtains or receives or endeabours to obtain or to receive any benefits, dividend or money payable in respect thereof; or
(c)by impersonating any owner of any interest in any company, including any share warrant or coupon issued in pursuance of this Act, obtains or endeavours to obtain any such interest or share warrant or coupon or received or endeavours to receive any benefit or money due to any such owner, as if he were the true and lawful owner; or
(d)without lawful authority or excuse—
(i)engraves or makes up on any plate, wood, stone or other material any certificate as to any interest in a company or any share warrant or coupon or document purporting to be such interest, share warrant or coupon issued or made by any particular company in pursuance of this Act or to be a blank certificate, share warrant or coupon so issued or made or to be a part of such a certificate, share warrant or coupon; or
(ii)uses any such plate, wood, stone or other material for the making or printing of any such certificate, share warrant or coupon or document or of any such blank certificate, share warrant or coupon or any part thereof; or
(iii)knowingly has in his custody or possession any such plate, wood, stone or other material.

Transfer of shares and debentures

127. Registration of transfer of shares or debentures

(1)Any transfer of shares or debentures in a company shall be registered by the company by entering in its register of members or debenture holders as the case may be the name and address of the transferee, the description of the shares or debentures transferred and the date of the registration of such transfer.
(2)Notwithstanding anything in the articles, no company shall register a transfer of shares or debentures in the company unless a proper instrument of transfer in the form prescribed or any substantially similar form which is recognised by the laws of the country in which the relevant transfer is registered has been delivered to the company:Provided that nothing in this section shall prejudice any power of the company to register as a member any person to whom the right to any share of the company has been transmitted by operation of law.
(3)Nothing in this section shall be construed as—
(a)preventing the transfer of a share or debenture by means of any form in use immediately prior to the commencement of this Act or any form prescribed at any time under this Act;
(b)affecting the provisions of any law or of any memorandum or articles of any company or other body corporate or of any contract which deals with the manner in which any document shall be signed or sealed by or on behalf of any company or other body corporate; or
(c)affecting the liability for the payment of any duty payable in respect of the registration of the transfer of any security.

128. Duty of company with reference to person under contractual disability

Where a company records in its registers the transfer of any share or debenture, it shall not be under any duty to satisfy itself that such transfer is within the contractual power of the transferor or transferee or that any legal requisite which obtains with reference to the ability of the transferor or transferee to transfer or to take transfer has been complied with or that any person signing any document relevant to the transfer on behalf of any person or company has been duly authorised to sign that document:Provided that this section shall not absolve any company from liability arising from any fraudulent act to which it is knowingly a party.

129. Warranty and indemnity by persons lodging documents of transfer

Any person (whether as a principal or agent), for the purposes of the transfer of any share or debenture of any company, as principal or agent, lodges with such company any document relating to such transfer, shall be deemed thereby to warrant that such document is genuine and that he, or when he is acting as agent, his principal jointly and severally with him, indemnifies the company against any claim made upon it and against any loss or damage suffered by it arising out of a transfer registered by the company of the share or debenture referred to in such document.

130. Notice of refusal to register transfer

If a company refuses to register a transfer of any shares or debentures, it shall, within thirty (30) days after the date on which the instrument of transfer was lodged with it, send to the transferor and the transferee notice of the refusal.

131. Limitation of time for issue of certificates on transfer

Unless a company is entitled for any reason to refuse to register a transfer and does not register it, the provisions of section 92 shall apply, mutatis mutandis.

Chapter VI
Prospectus and offering of shares

132. Interpretation

In this Chapter, unless the context otherwise provides—"company" includes a "foreign company";"expert" means any person holding himself out to be such and any other person who professes to have extensive knowledge or experience or to exercise special skill which gives or implies authority to a statement made by him;"issued generally", in relation to a prospectus, means issued to persons who are not existing members or debenture holders of the company;"letter for allocation" means any document conferring a right to subscribe for shares in terms of a rights offer;"offer", in relation to shares, means an offer made in any way, including by provisional allotment, for the subscription for or sale of any shares and includes an invitation to subscribe for or purchase any shares;"offer to the public" and any reference to offering shares to the public means any offer to the public and includes an offer of shares to any section of the public, whether selected as members or debenture-holders of the company concerned or as clients of the person issuing the prospectus concerned or clients of the person issuing the prospectus concerned or in any other manner;"promoter", in relation to civil and criminal liability in respect of an untrue statement in a prospectus or of the portion thereof containing the untrue statement in a prospectus, means a person who was a party to the preparation of the prospectus or of the portion thereof containing the untrue statement but does not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company or preparing the said prospectus;"rights offer" means an offer for subscription, with a right to renounce in favour of other persons, to the members or debenture holders of a company, for shares (as defined in relation to an offer of shares for subscription or sale in section 1(1)) of that company or any other company, where a stock exchange has granted or has agreed to grant a listing for the shares which are the subject of the offer;"stock market" means the Swaziland stock market or any other stock market stock exchange recognised by the Minister for the purposes of this definition bynotice in the Government Gazette;"untrue statement", in relation to a prospectus or portion thereof, includes—(a)a statement which is misleading in the form and context in which it is included therein and a statement shall be deemed to be included in a prospectus if it is contained in any report or memorandum which appears on the face of the prospectus or which is by reference incorporated therein or is attached to or accompanies the prospectus on registration; and(b)an omission from a prospectus of any matter whether such matter is required to be included therein by this Act or not, if such omission is calculated to mislead, and such prospectus shall be deemed in respect of such omission to be a prospectus in which an untrue statement is included.

Offers to the public

133. Restrictions as to offers and issues

(1)Other than in respect of the minimum number of shares required for incorporation, a public company shall not—
(a)allot or issue any shares in or debentures of that company;
(b)offer any shares in or debentures of that company; or
(c)invite any person to subscribe for any shares in or debentures of that company
unless the said allotment, issue, offer or invitation is in writing and is accompanied by a prospectus issued by that company.
(2)Subject to subsection (3), a public company shall not accept any offer for shares in or debentures of that company unless such offer results from an invitation made by the company in accordance with subsection (1).
(3)An allotment or issue of such share in or debentures of that company resulting from any offer or invitation accompanied by a prospectus made in accordance with this section shall not be required to be accompanied by a further prospectus.

Prospectus

134. Matters to be stated in prospectus

A prospectus issued in terms of this Act shall contain a fair presentation of the state of affairs of the company, the shares or debentures of which are being offered and shall state at least the matters specified in, and set out the reports referred to, in Schedule 2.

135. Consent by experts and others

A prospectus which includes any statement or reference to any statement purporting to be made by an expert, shall not be registered by the Registrar unless—
(a)the expert has given, and has not before the lodging of a copy of the prospectus for registration, withdrawn his written consent to the issue thereof with the statement or reference included in the form and context in which it is included;
(b)a statement that the expert has given and has not withdrawn his consent, appears in the prospectus; and
(c)such written consent is endorsed on or attached to the prospectus lodged with the Registrar.

136. Contracts and translations thereof to be attached to prospectus

(1)A prospectus shall not be lodged unless there is attached to it a copy of every contract required by Schedule 2 to be stated in a prospectus or, in the case of a contract not reduced to writing, a memorandum giving full particulars thereof.
(2)The contract referred to in subsection (1) shall, if it is—
(a)in a foreign language, be lodged with a certified translation thereof; or
(b)partly in a foreign language, a copy thereof embodying such certified translation of so much thereof as is in a foreign language.

137. Where the issue is underwritten

(1)A prospectus containing a statement to the effect that the whole or any portion of the issue of the shares or debentures offered to the public, has been or is being underwritten shall not be lodged unless a copy of the underwriting contract and a sworn declaration by the person named as underwriter is lodged simultaneously, or, if such person is a company, by a director of such company, that to the best of the deponent’s knowledge and belief the underwriter is and will be in a position to carry out his obligations even if no shares are applied for.
(2)If an offer for shares is made in respect of which no prospectus is required by this Act, the copy of the contract and sworn declaration referred to in subsection (1) shall be lodged with the Registrar not later than the date of the proposed offer for shares.
(3)A company, and any person (including a body corporate) and every director or officer of the company (or body corporate) who knowingly and is a party to the contravention of subsection (2) commits an offence.
(4)In the event of any underwriter being unable, when duly called upon, to carry out his obligations under the underwriting contract, any person who has in connection with such contract made a sworn declaration as required by subsection (1) shall, unless he proves that when he made the declaration he believed and has reasonable grounds for believing that the underwriter was or would be able to carry out such obligations, be guilty of an offence.

138. Signing, date and date of issue of prospectus

Every prospectus shall be signed by every person named therein as a director of the company or by his agent authorised by him in writing to sign on his behalf and such signatures shall be dated and such signature shall be deemed to constitute his consent to the issue of such prospectus.

139. Registration of prospectus

A prospectus shall be registered by the Registrar together with such documents as may have been lodged, within fourteen days of the date of lodgement of such prospectus.

140. Time limit for issue of prospectus

A prospectus shall not be issued more than ninety days after the date of its lodgement, and if a prospectus is so issued, it shall be deemed to be a prospectus which has not been lodged.

141. Waiver of requirements of this chapter void

Any condition requiring any applicant for shares or debentures to waive compliance with any requirements of this chapter or purporting to affect him with notice of any contract, document or matter not specifically referred to in the prospectus, shall be void.

142. Liability for untrue statements in prospectus

(1)Where shares are offered to the public for subscription in pursuance of a prospectus, every person who—
(a)is, at the time of the issue of the prospectus, a director of the company;
(b)becomes a director at any time between the issue of the prospectus and the holding of the first general meeting of the company at which directors are elected or appointed;
(c)with his authority is named in the prospectus as a director or as having agreed to become a director either immediately or after an interval of time;
(d)is a promoter of the company; or
(e)has authorised the issue of the prospectus,
shall be liable to pay compensation to all persons who have acquired any shares on the faith of the prospectus for the loss or damage they may have sustained by reason of any untrue statement therein, or in any report or memorandum appearing on the face thereof or issued therewith, or by reference incorporated therein.
(2)Where shares are offered to the public for sale in pursuance of a prospectus, every person who—
(a)has made the said offer;
(b)under section 138 is deemed to have authorised the issue of such prospectus; or
(c)is, in relation to the company the shares of which are so offered, a person referred to in subsection (1)(a), (b), (c), (d) or (e), shall be liable to pay compensation to all persons who have acquired any shares on the faith of the prospectus for the loss or damage they may have sustained by reason of any untrue statement therein, or in any report or memorandum appearing on the face thereof or issued therewith, or by reference incorporated therein.
(3)A person shall not be liable in terms of subsection (1) or (2) if it is proved—
(a)with respect to every such untrue statement not purporting to be made on the authority of an expert or of a public official document or statement, that he had reasonable ground to believe, and did up to the time of the allotment of the shares or the acceptance of the offer, as the case may be, believe that the statement was true;
(b)with respect to every such untrue statement purporting to be a statement by or contained in what purports to be a copy of or extract from the report or valuation of an expert, that it fairly represented that the statement was a correct and fair copy of or extract from the report or valuation and that the defendant had reasonable ground to believe and did up to the time of the issue of the prospectus believe that the person making the statement was competent to make it, and that the said person had given the consent required by this Act to the issue of the prospectus or the making of the offer and has not withdrawn that consent before lodgement of a copy of the prospectus for registration or, to the defendant’s knowledge, before allotment thereunder or before the acceptance of the offer;
(c)with respect to every such untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy or extract from a public official statement, that it was a correct and fair representation of the statement or copy of or extract from the document or—
(i)that having consented to become a director of the company, he withdrew his consent before the issue of the prospectus and that it was issued without his authority or consent;
(ii)that the prospectus was issued without his knowledge or consent and that on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(iii)that after the issue of the prospectus and before allotment or acceptance thereunder he, on becoming aware of any untrue statement therein, withdrew his consent thereto and gave reasonable public notice of the withdrawal and of the reason therefor.
(4)Where the prospectus contains the name of a person as a director of the company, or as having agreed to become a director thereof, and he has not consented to become a director, or has withdrawn his consent before the issue of the prospectus and has not authorised or consented to the issue thereof, the directors of the company (except any without whose knowledge or consent the prospectus was issued) and any other person who issued it or authorised the issue thereof, shall be liable to indemnify such person, against all damages, costs and expenses for which he may be liable by reason of his name having been so stated in the prospectus or in defending himself against any action or legal proceedings brought against him in respect thereof.
(5)Every person who by reason of his being a director or having been named as a director, or having agreed to become a director, or of his having authorised the issue of the prospectus has satisfied any liability to make payment under this section, may recover a contribution, as in the cases of contract, from any other person, who, if sued separately, would have been liable to make the same payment, unless the person who has satisfied such liability was, and that other person was not, guilty of fraudulent misrepresentation.

143. Liability of experts and others

(1)Where the consent of any person is required under section 135 and he has given such consent he—
(a)shall not, by reason of his having given it, be liable as a person who has authorised the issue of the prospectus either—
(i)under section 142(1) or (2) to compensate the person subscribing or purchasing on the faith of the prospectus, except in respect of any untrue statement purporting to be made by him as an expert; or
(ii)under section 142(4) to indemnify any person against liability under the said section 142(1) or (2); but
(b)shall, in respect of any untrue statement purporting to be made by him as an expert, be liable under section 142(1) or (2), unless one of the following matters (which shall in his case be in lieu of the grounds of defence available to others by virtue of section 142(3)), is proved, namely that—
(i)having given such consent, withdrew it in writing before lodgement of a copy of the prospectus for registration; or
(ii)after lodgement of a copy of the prospectus for registration and before allotment thereunder to, or before acceptance thereunder by the person complaining, he on becoming aware of the untrue statement, withdrew his consent in writing and gave reasonable public notice of the withdrawal and of the reason therefor; or
(iii)he was competent to make the statement and that he had reasonable ground to believe and did up to the time of the allotment of the shares or the acceptance of the offer, as the case may be, believe that the statement was true.
(2)If under section 135 the consent of any person is required to the issue of a prospectus, and he either has not given such consent or has withdrawn it before the issue of the prospectus, he shall be entitled to indemnity under section 142 as if he had without his consent been named in the prospectus and a director of the company.

144. Offences in respect of untrue statements in prospectus

(1)Where a prospectus contains a statement which is untrue, every person referred to in section 142(1) or (2) shall, subject to the provisions of subsections (3) and (4) of this section, be guilty of an offence.
(2)Where there is published with or as part of a prospectus a report of any expert or an extract from such report and such report or extract contains a statement which is untrue, the expert shall, provided he has given his consent to the inclusion of such statement in the prospectus in the form and context in which it appears, and subject to the provisions of subsections (3) and (4), be guilty of an offence.
(3)In any prosecution under this section it shall be a defence if it is proved either that the untrue statement was immaterial or—
(a)with respect to every such untrue statement not purporting to be made on the authority of an expert or of a public official document or statement, that the person charged had, after investigation, reasonable ground to believe and did up to the time of the allotment of the shares or acceptance of the offer (as the case may be) believe that the statement was true, and that there was no omission to state any material fact necessary to make the statement as set out not misleading; and
(b)with respect to every untrue statement purporting to be a statement by or contained in what purports to be a copy of or extract from a report or valuation of an expert, that the person charged had reasonable ground to believe and did believe that the person making the report or valuation was competent to make it; and
(c)with respect to every such untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, that it was a correct and fair representation of the statement or copy of or extract from the document.
(4)In any prosecution under this section of any person it shall be a defence if it is proved that—
(a)having consented to become a director of the company he withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent; or
(b)the prospectus was issued without his knowledge or consent, and that on becoming aware of its issue he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(c)after the issue of the prospectus and before allotment or acceptance thereunder, he, on becoming aware of any untrue statement therein, withdrew his consent thereto and gave reasonable public notice of the withdrawal, and of the reason therefor.

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

Nothing in this Chapter shall limit or diminish any liability which any person may incur under this Act apart from this chapter, or under any other law, or under the common law.

146. Time limit as to allotment or acceptance

(1)A company shall not allot any shares or debentures of that company unless the application for allotment is received by the company or the offeror, as the case may be, before the expiry of a period of ninety (90) days after the date of lodgement of the prospectus.
(2)Any director or officer of a company or any offeror or, if the offeror is a company, any director or officer of that company who knowingly contravenes or permits the contravention of subsection (1) shall be guilty of an offence and liable to a fine.

147. No allotment unless minimum subscription received

(1)No shares in or debentures of a company shall be allotted on any application made in pursuance of a prospectus for subscription unless the amount stated in such prospectus as the minimum amount which in the opinion of the directors of the company concerned must be raised by the issue of such shares in or debentures of the company has been subscribed and the amount so stated has been paid to and received by the company.
(2)For the purposes of subsection (1), an amount stated in any cheque received by the company shall not be deemed to have been paid to and received by it until the amount of the cheque has been unconditionally credited to its account with its bankers.
(3)The amount paid on application shall be set apart by the directors as a separate fund in a separate account with a banking institution licensed under the Financial Institutions Order, 1975, and shall not be available for the purposes of the company or for the satisfaction of its debts until the minimum subscription has been made up.
(4)If the requirements prescribed in subsection (1) have not been complied with on the term of the prospectus, all moneys received from applicants for shares in or debentures of the company shall forthwith be repaid to them without interest, and, if any such money is not so repaid within a period of twenty (20) days after the expiry of the term of the prospectus the directors and officers of the company shall be jointly and severally liable to repay such money with interest at the rate of eight (8) per cent per annum reckoned from the expiry of such period of twenty (20) days.
(5)It shall be a defence to any claim under subsection (4) to prove that the default which is the subject of the claim or charge, was not due to any misconduct or negligence on the part of the defendant, or the accused.

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

(1)No prospectus containing a statement to the effect that application has been or will be made for permission for the shares in or debentures offered thereby to be dealt in on a stock exchange shall be issued unless such an application has been made in accordance with the requirements of the stock exchange concerned on or before the date of issue of such prospectus and it names the particular stock exchange to which such application has been made.
(2)Any allotment of shares or debentures in pursuance of a prospectus referred to in subsection (1) shall be subject to the condition that the application for permission for such shares or debentures to be dealt in on the stock exchange concerned, is granted or that an appeal against a refusal of such application, is upheld.
(3)Any money received by or on behalf of the company in respect of applications for shares or debentures in pursuance of a prospectus referred to in subsection (1) shall be set apart by the directors of the company as a separate fund in a separate account with a banking institution licensed under the Financial Institutions Order, 1975, or any other banking institution approved by the Central Bank of Swaziland for this purpose, and shall not be available for the purposes of the company or for the satisfaction of its debts so long as the company may in terms of subsection (5) become liable for the repayment thereof.
(4)If any issue of shares or debentures in pursuance of the prospectus referred to in subsection (1) is oversubscribed, the directors of the company shall forthwith repay the amounts oversubscribed to the applicants.
(5)Where the application for permission to deal in the shares or debentures on the stock exchange has been refused and no appeal has been noted or if an appeal against a refusal of an application has been dismissed or an appeal against the granting of an application has been upheld, the company shall forthwith repay all moneys received in respect of applications made in pursuance of the prospectus together with any interest earned thereon.
(6)If any money referred to in subsection (5) is not repaid within fourteen (14) days after the company becomes liable to repay it, the directors and officers of the company, together with the company, shall be jointly and severally liable to repay such money with interest at the rate of eight (8) per cent per annum from the expiry of the fourteenth day.
(7)It shall be a defence to any claim under subsection (6) to prove that the default which is the subject of the claim or the contravention or non-compliance was not due to misconduct or negligence on the part of the defendant or the accused.
(8)The provisions of this section shall—
(a)in relation to any shares or debentures agreed to be taken by a person underwriting an offer of the shares by a prospectus, have effect as if he has applied therefor in pursuance of the prospectus;
(b)in the case of a prospectus offering shares for sale, be construed, except in so far as the context otherwise indicates—
(i)as if any reference therein to the allotment of shares were a reference to the acceptance of the offer in respect thereof;
(ii)subject to the provisions of subparagraph (iii), as if any reference therein to a company by which a prospectus has been issued, or a director or officer thereof, were a reference to the person by whom the shares have been offered; and
(iii)where the person by whom the shares have been offered is a company, as if the reference therein to a director or officer of a company by which a prospectus has been issued, were a reference to a director or officer of the company by which the shares have been offered for sale.

Chapter VII
Administration of companies

149. Postal address and registered office of company

(1)A company including a foreign company shall have in the Kingdom of Swaziland—
(a)a registered office which shall be a place located in premises to which all communication be addressed or notices may be delivered; and
(b)a registered postal address to which all communications notices may be served addressed and notices or other process may be served.
(2)Upon the incorporation of a company, notice of the situation of the registered office and of the registered postal address shall be given to the Registrar and notice of any change in the situation of the registered office or the registered postal address shall be given to the Registrar before such change is made, and the Registrar shall record any notice so given.
(3)A change in the situation of the registered offices or the registered postal address shall not be of any force or effect until notice of such change be lodged with the Registrar as required by subsection (2).
(4)Any notice referred to in subsection (2) shall be in the prescribed form and shall be accompanied by the prescribed fee.

150. Restrictions on commencement of business

(1)This section shall not apply to a private company.
(2)If a company has issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing powers unless—
(a)shares held subject to the payment of the whole amount thereof in cash have been allotted to a total amount of not less than the minimum subscription;
(b)every director of the company has paid to the company on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares offered for public subscription;
(c)an affidavit by the secretary; or one of the directors, in the prescribed form, that the aforesaid conditions have been complied with is lodged with the Registrar;
(d)the Registrar has certified that the company may commence business.
(3)If a company has not issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing powers, unless—
(a)a statement in lieu of prospectus is lodged with the Registrar;
(b)every director of the company has paid to the company on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares payable in cash;
(c)an affidavit by the secretary or one of the directors in the prescribed form that paragraph (b) has been complied with lodged with the Registrar;
(d)the Registrar has certified that the company is entitled to commence business.
(4)The Registrar shall, on delivery to him of the affidavit and, in the case of a company which is required by this section to deliver a statement in lieu of prospectus, of such statement certify that the company is entitled to commence business, and that certificate shall be conclusive evidence that the company is so entitled.
(5)Any contract made by a company before the date at which it is entitled to commence business shall be provisional, and shall not be binding on the company until that date, and on that date it shall become binding.
(6)Nothing in this section shall prevent the simultaneous offer for subscription or allotment of any shares and debentures or the receipt of any money payable on application for debentures.
(7)If any company commences business or exercises borrowing powers in contravention of this section, every person who is responsible for the contravention shall, without prejudice to any other liability, be guilty of an offence and liable to a fine not exceeding E200 for every day during which the offence continues.

151. Annual return

(1)A company including a foreign company, shall not earlier than 1st July or later than 31st August of any calendar year, lodge with the Registrar the annual return, in the prescribed form and accompanied by the prescribed fee, specifying the following particulars in regard to the company as at 30th June of each calendar year—
(a)the name of the company, its registration number, the situation of its registered office and its registered postal address and the place where the registers of members, debenture-holders, allotments, interests in shares and debentures and interests in contracts are kept, if they are not kept at the registered office;
(b)the date on which its financial year ends;
(c)the date on which its last annual general meeting was held and, if an extension of time was applied for, a statement of such fact;
(d)the names and addresses of the officers of the company;
(e)the name and address of the auditor of the company;
(f)the nominal and issued share capital;
(g)in the case of a private company, only the names and addresses of its members.
(2)The annual return shall be signed by one of the directors or the secretary of the company and a copy thereof shall be kept in the registered office of the company.
(3)Section 97 relating to the inspection of the register of members of a company and the furnishing of copies thereof or extracts therefrom shall apply, mutatis mutandis, to the annual return by a company.

152. Enforcement of duty of company to make returns to Registrar

(1)If a company, having made default in complying with any provision of this Act which requires it to lodge with, deliver or send to the Registrar any return, annual financial statements or other documents, or to give notice to him of any matter, fails to make good the default within thirty days after the service of a notice on the company requiring it to do so, the court may, on an application by any member or creditor of the company or by the Registrar, make an order directing the company and any officer thereof to make good the default within such time as may be specified in the order.
(2)Any such order may provide that all costs of and incidental to the application be borne by the company or by any officer of the company responsible for the default.
(3)Nothing in this section shall prejudice the operation of any provision of this Act imposing a penalty on a company or its officers in respect of any such default.

153. Extension of time

If in terms of this Act any return is required to be lodged within a specified period of time, the Registrar may in any case, on application to him before or after the expiry of such period on payment of the prescribed fee extend such period as he may deem fit subject to the provisions of this Act, and if any period has been so extended, any reference in section 154 to such period shall be construed as a reference to such period as extended.

154. Additional fees in respect of late submission of documents or notices

If any return required by this Act to be filed with the Registrar is not so filed within the specified time, such return may only be filed on payment of a penalty equal to three times the amount of the fee which would ordinarily be payable in respect of the filing of such return, in addition to the payment of the fee ordinarily payable.

Meetings of the company

155. Annual general meeting

(1)A company, shall hold general meetings to be known and described in the notices calling such meetings as annual general meetings of such company at such times as prescribed in this section.
(2)Such meetings shall be held—
(a)in the case of the first such meeting, within a period of eighteen (18) months after the date of the incorporation of the company concerned;
(b)thereafter within not more than nine (9) months after the end of every ensuing financial year of that company; and
(c)within not more than fifteen (15) months after the date of the last preceding such meeting of that company.
(3)The annual general meeting of a company shall deal with and dispose of the matters prescribed by this Act and may deal with and dispose of such further matters as are provided for in the articles of the company and, subject to any other applicable provision, any matters capable of being dealt with by any general meeting of the company.
(4)The Registrar may, on application to him before the expiry of the period within which an annual general meeting of a company must be held and on good cause shown, and on payment of the prescribed fee, extend such period by a period not exceeding three (3) months but, notwithstanding any such extension, the date for the holding of the first annual general meeting following the meeting in respect of which the extension is granted, shall be determined as if such meeting had been held on the last day on which it should have been held if the extension had not been granted.
(5)If for any reason an annual general meeting of a company is not or cannot be held as provided in this section or any matter required by this Act to be dealt with and disposed of at the general meeting is not dealt with the Registrar may, on application by the company or any member and on payment of the prescribed fee, call or direct the calling of a general meeting of the company which shall be deemed to be an annual general meeting and may give such ancillary or consequential directions as he may think expedient, including directions modifying or supplementing, in relation to the calling, holding and conduct of the meeting, the operation of the company’s articles, and directions providing for one member or any specified number of members present in person or by proxy, to be deemed to constitute a meeting, and any meeting called, held and conducted in accordance with any such direction shall for all purposes be deemed to be an annual general meeting of the company duly called, held and conducted.
(6)For the purpose of determining the date for the holding of the next succeeding annual general meeting of a company, after a meeting held in pursuance of subsection (5), the provisions of subsection (4) shall, mutatis mutandis, apply.
(7)A company may not hold any particular annual general meeting if all members entitled to attend that meeting agree thereto in writing, and in such event a resolution in writing dealing with and disposing of—
(a)the matters required by this Act, or the articles of association, to be dealt with and disposed of at an annual general meeting of a company; and
(b)such other matters, if any, as may, in terms of subsection (3) be dealt with such a meeting,
and signed by all members entitled to vote at the meeting, shall be deemed to be a resolution passed at an annual general meeting of the company held in terms of this section on the date on which the last signature to such resolution is affixed.

156. Election by private company to dispense with annual general meeting

(1)A private company may elect by elective resolution in accordance with section 185, dispense with the holding of annual general meetings.
(2)An election has effect for the year in which it is made and subsequent year but does not affect any liability already incurred by reasons of default in holding an annual general meeting.
(3)In any year in which an annual general meeting would be required to be held but for the election, and in which no such meeting has been held, any member of the company may, by notice to the company not later than three months before the end of the year, require the holding of an annual general meeting in that year.
(4)If such notice is given, the provisions of section 155(1) and (4) apply with respect so the calling of the meeting and the consequences of default.

157. General meetings

A general meeting of a company may, subject to its articles, be held from time to time.

158. Calling of general meetings on requisition by members

(1)The directors of a company shall notwithstanding anything in its articles, on the requisition of members holding at the date of the lodging of the requisition not less than one-tenth of such of the capital of the company as at the date of the lodgment carries the right of voting at general meetings of the company, within fourteen (14) days of the lodging of the requisition issue a notice to members convening a general meeting of the company for a date not less than twenty-one (21) and not more than thirty-five (35) days from the date of the notice.
(2)The requisition shall state the objects of the meeting and shall be signed by the requisitionists and lodged at the registered office of the company, and may consist of several documents in like form, each signed by one or more requisitionists.
(3)If the directors do not within fourteen (14) days from the date of the lodging of the requisition issue a notice as required by subsection (1), the requisitionists representing more than one-half of the total voting rights of all of them, may themselves on twenty-one (21) days notice convene a meeting, stating the objects thereof, but no meeting so convened shall be held after the expiry ninety (90) days from such date.
(4)Any meeting convened under this section by the requisitionists shall be convened in the same manner, as nearly as possible, as that in which meetings are to be convened by the directors of the company concerned.
(5)Any reasonable expense incurred by the requisitionists by reason of the failure of the directors duly to convene a meeting shall be repaid to the requisitionists by the company, and any sum so repaid shall be retained by the company out of any sums due or to become due from the company by way of fees or other remuneration in respect of their services to such of the directors as were knowingly party to the default.

159. Convening of general meetings by Registrar

Where all the directors of a company have become incapacitated or have ceased to be directors, the Registrar may, unless the articles of a company make other provisions in that respect, on the application of any member of the company or his legal representative, call or direct the calling of a general meeting of the company and may give such ancillary or consequential directions as he may deem expedient, including direction modifying or supplementing, in relation to the calling, holding and conduct of the meeting, the operation of the company’s articles, and directions providing for one member or the legal representative or by proxy to be deemed to constitute a meeting, and any meeting, held or conducted in accordance with any such directions, shall for all purposes be deemed to be a general meeting of the company duly called, held and conducted.

160. General meetings on order of court

If for any reason it is impracticable to call an annual general meeting or other general meeting of a company in any manner in which meetings of such company may be called, or to conduct any such meeting in the manner prescribed by the articles of a company or this Act, or if for any other reason the court thinks fit to do so, it may, either of its own motion or on the application of the Registrar or any director of the company or of any member of the company order a meeting of the company to be called, held and conducted in such manner as it may direct and may in making any such order give such ancillary or consequential directions as it thinks expedient, including directions providing for one member or any specified number of members present in person or by proxy to be deemed to constitute a meeting, and any meeting called, held and conducted in accordance with any such order, shall for all purposes be deemed to be an annual general meeting or a general meeting, as the case may be, of the company duly called, held and conducted.

161. Meeting of company with one member

In the case of a company having only one member, such member present in person or by proxy shall be deemed to constitute a meeting.

162. Duty of company to circulate notice of resolutions and statements by members

(1)Subject to this section, a company shall, on the requisition in writing of such number of members as is referred to in subsection (2), and unless the company otherwise determines at the expense of the requisitionists—
(a)give to members of the company entitled to receive notice of the next annual general meeting, notice of any resolution which may properly be moved and is intended to be moved at that meeting; and
(b)circulate to members entitled to have notice of any general meeting sent to them, any statement of not more than one thousand words with respect to the matter referred to in any proposed resolution or the business to be dealt with at that meeting.
(2)The number of members necessary for a requisition under subsection (1) shall be any number of members representing not less than one-tenth of the total voting rights of all members having at the date of the requisition a right to vote at the meeting to which the requisition relates.
(3)Notice of any such resolution shall be given and any such statement shall be circulated to members of the company entitled to have notice of the meeting sent to them, by serving a copy of the resolution or statement on each such member in any manner permitted for the service of notice of the meeting, and notice of any such resolution shall be given to any other member of the company by giving notice of the general effect of the resolution in any manner permitted for giving him notice of meetings of the company.
(4)A copy of any such resolution or statement referred to in subsection (3) shall be served and notice of any such resolution shall be given in the same manner and, so far as practicable, at the same time as the notice of the meeting in question, or if it is not practicable to do so, as soon as practicable thereafter.
(5)A company shall not be bound under this section to give notice of any resolution or to circulate any statement unless—
(a)there is lodged at the registered office of the company a copy of the requisition signed by the requisitionists or two or more copies thereof which between them contain the signatures of all the requisitionists—
(i)in the case of a requisition requiring notice of a resolution, not less than fourty days before the meeting; and
(ii)in the case of any other requisition, not less than before the meeting; and
(b)there is lodged or tendered with the requisition a sum reasonably sufficient to meet the company’s expenses in giving effect thereto:
Provided that if, after a copy of a requisition requiring notice of a resolution has been lodged at the registered office of the company, an annual general meeting is called for a date fourty days or less after the copy has been lodged, the copy, though not lodged within the time required by this subsection, shall be deemed to have been properly lodged.
(6)The court may absolve any company from the obligation to circulate any resolution or statement in terms of this section if, on the application either of the company or of any other interested person, the court is satisfied that the rights thereby conferred are being abused to secure needless publicity for defamatory matter.
(7)An order under subsection (6) may include an order for the payment by the requisitionists of the costs or any portion of the costs incurred in connection with the relevant application whether or not they are parties to the application.
(8)The decision of the court on any application made under subsection (6) shall be final.
(9)Notwithstanding anything in the articles of a company, the business which may be dealt with at an annual general meeting thereof, shall include any resolution of which notice has been given in accordance with this section:Provided that if the articles of the company so permit notice shall be deemed to have been so given notwithstanding the accidental omission to give such notice to one or more members.

163. Notice of meetings and resolutions

(1)Unless the articles of a company provide for a longer period of notice, the annual general meeting or a general meeting called for the purpose of passing a special resolution may be called on not less than twenty-one (21) days’ notice in writing and any other general meeting may be called by not less than fourteen (14) clear days’ notice in writing and any provision in the articles of a company providing for a shorter period of notice, not being of an adjourned meeting, shall be void.
(2)Notwithstanding subsection (1), a meeting of a company which is called on a shorter period of notice than is prescribed therein or provided for in the company’s articles, shall be deemed to have been duly called if it is so agreed by a majority in number of the members having a right to attend and vote at the meeting who hold not less than ninety-five (95) per cent of the total voting rights of all the members.
(3)A private company may elect by elective resolution in accordance with section 190 that subsection (2) shall have effect as if for the reference to ninety-five (95) per cent there were substituted reference to a lesser percentage, but not less than ninety (90) per cent, as may be specified in the resolution or subsequently determined by the company.
(4)No resolution of which special notice is required to be given in terms of this Act shall have effect unless notice of the intention to move it has been given to the company not less than twenty-eight (28) days before the meeting at which it is moved, and the company shall give its members notice of any such resolution at the same time and in the same manner as it gives notice of such meeting, or, if that is not practicable, either by advertisement in a newspaper having an appropriate circulation or in any other manner allowed by the articles of the company, not less than twenty-one (21) days before the meeting:Provided that a meeting of the company called after notice of intention to move such a resolution has been given to the company for a date twenty-eight days or less, the notice, though not given within the time required by this subsection, shall be deemed to have been properly given for the purposes thereof.

164. Manner of giving notice

Unless the articles of a company otherwise provide, notice of a meeting of a company shall be served on every member of the company in the manner in which notices are required to be served in terms of Table A or Table B of Schedule 1, whichever is applicable to the company.

165. Representation of company or other body corporate at meetings of companies and meetings of creditors

(1)A company or other body corporate may, by resolution of its directors or other governing body, authorise any person to act as its representative at any meeting of any company of which it is a member or at any meeting or any class of members of that company.
(2)The provisions of subsection (1) shall, mutatis mutandis, apply with reference to meetings of debenture-holders and creditors of a company.
(3)A person authorised in terms of subsection (1) shall be entitled to exercise on behalf of the company or other body corporate which he represents, the same powers as such company or body corporate could have exercised if it were an individual shareholder, debenture holder or creditor of the company in relation to which such person has been authorised to act.

166. Representation of members at meetings by proxies

(1)Any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint another person (whether a member or not) as his proxy to attend, speak, and vote in his stead at any meeting of the company:Provided that, unless the articles otherwise provide, a proxy shall not be entitled to vote except on a poll, and a member of a private company shall not be entitled to appoint more than one proxy.
(2)In every notice calling a meeting of a company and on the face of every proxy form issued at the company’s expense there shall appear with reasonable prominence a statement that a member entitled to attend and vote at the meeting is entitled to appoint a proxy to attend and speak and vote at that meeting in his stead, and that a proxy need not also be a member of the company.
(3)Any provision in a company’s articles shall be void in so far as it would have the effect of requiring the instrument appointing a proxy, or any other document necessary to show the validity of or otherwise relating to the appointment of a proxy, to be received by the company at its registered office or by any other person more than forty-eight (48) hours before a meeting in order that the appointment may be effective thereat.
(4)
(a)If for the purpose of any meeting of a company, invitations to appoint as proxy a person, or one of a number of persons, specified in the invitations are issued at the company’s expense to some only the members entitled to notice of the meeting and to be represented thereat by proxy, every director or officer of the company who authorises or knowingly permits or is a party to such issue, commits an offence and shall be guilty of an offence.
(b)Paragraph (6)(a) shall not apply in respect of the issue to a member of the company at his request in writing of a form of appointment naming a proxy or a list of persons willing to act as proxy, if the form or list is available on request in writing to every member entitled to be represented at the meeting in question by proxy.
(5)If for the purposes of any meeting of a company, invitations to appoint as proxy a person, or one of a number of persons, specified in the invitation or the instruments appointing a proxy, are issued at the company’s expense, any such invitation or instrument appointing a proxy shall—
(a)contain adequate blank space immediately preceding the name or names of the person or persons specified therein to enable a member to write in the name and, if so desired, an alternative name of a proxy of his own choice;
(b)provide for the member to indicate whether his proxy is to vote in favour of or against any resolution or resolutions to be put at the meeting or is to abstain from voting.
(6)The person present at a meeting of the company, whose name appears first in the list of names which have not been deleted in any instrument appointing a proxy, shall be the validly appointed proxy of the member concerned.
(7)If a member does not indicate on the instrument appointing a proxy that his proxy is to vote in favour of or against any resolution or resolutions or to abstain from voting, the proxy shall be entitled to vote as he thinks fit.
(8)This section shall apply in relation to meetings of any class of members of a company as they apply in relation to general meetings of the company.

167. Quorum for meetings

Unless the articles of a company provide for a greater number of members entitled to vote to constitute a quorum at meetings of a company, the quorum for such meetings shall be—
(a)in the case of a public company, two members entitled to vote, personally present, or if a member is a body corporate, represented;
(b)in the case of a private company, not being a private company having one member, two members entitled to vote, present in person or by proxy or, if a member is a body corporate, represented.

168. Chairman of meetings

Unless the articles of a company otherwise provide, any meeting of the company may elect any member to be the chairman of the meeting.

169. Compulsory adjournment of meetings

(1)If at any meeting of a company any member of the company who is present or represented and entitled to vote at the meeting demands an adjournment of the meeting upon any ground stated by him, the chairman shall put the demand to the vote of the meeting, and if a majority of the members present or represented and entitled to vote at the meeting or members present or represented and entitled to vote representing either personally or by proxy more than half of the share capital of the company represented at the meeting, vote in favour of an adjournment, the chairman shall adjourn the meeting to a day to be decided by the meeting not earlier than seven (7) days (and not later than twenty-one (21)) days after the day of the meeting.
(2)If such a meeting has been so adjourned the company shall upon a date not later than three days after the adjournment, publish in a newspaper circulating in Swaziland where the registered office of the company is situated a notice stating—
(a)the time, date and place to which the meeting has been adjourned;
(b)the matter before the meeting at the time it was adjourned; and
(c)the ground for adjournment:
Provided that a private company may, instead of publishing such notice in a newspaper, send it by registered post to the members not later than three (3) days after the adjournment.

Voting rights and voting

170. Voting rights of shareholders

Subject to sections 171, 172 and section 173, every member of a company shall have a right to vote at meetings of that company in respect of each share held by him.

171. Voting rights of preference shareholders

(1)Notwithstanding section 170, the articles of a company may provide that preference shares shall not confer the right to vote at meetings of the company except—
(a)during any period determined as provided in subsection (2) during which any dividend or any part of any dividend on such share or any redemption payment remains in arrear and unpaid; or
(b)in regard to any resolution proposed which directly affects any of the rights attached to such shares or the interests of the holders thereof, including a resolution for the winding-up of the company or for the reduction of its capital.
(2)The period referred to in subsection (1)(a) shall be a period commencing on a day specified in the articles of the company concerned, not being more than six (6) months after the due date of the dividend of redemption payment in question, or, if no due date is specified, after the end of the financial year of the company in respect to which such dividend accrued or such redemption payment became due.

172. Determination of voting rights

(1)A member of a public company shall be entitled to that proportion of the total votes in the company which the aggregate amount of the nominal value of the shares held by him bears to the aggregate amount of the nominal value of all the shares issued by the company.
(2)The voting rights of a member of a private company shall, subject to section 170 be determined by the articles of the company.
(3)Notwithstanding this section, the articles of a company may provide—
(a)for the chairman of any meeting to have a casting vote; and
(b)for the votes to which any member is entitled above a stated number to increase, not in direct proportion to the number of shares held, but in some lower proportion specified in such articles and may in such event further provide that no member shall be entitled to a number of votes exceeding the number so specified or that the number of votes to which any member is entitled be limited to a specified number.

173. Exceptions as regards voting rights in existing companies

(1)Section 170 shall not apply in respect of shares of a company which at the date of the commencement of this Act had already been issued within voting rights, or in respect of issued shares (other than preference shares) in respect of which at such date there existed different voting rights or in respect of shares subsequently issued in respect of which there existed at such date a contractual right or obligation to issue any such shares.
(2)If any such company issues new shares, all the provisions of this Act as to voting rights shall, save as provided in subsection (1), apply in respect of such new shares, and, for the purpose of determining the voting rights attached to such new shares as provided in section 172 all its shares shall be deemed to have been issued with voting rights in accordance with this Act.

174. Exercise of voting rights

(1)Any person present and entitled to vote on a show of hands, as a member or as a proxy or as a representative of a body corporate, at any meeting of the company shall on a show of hands have only one vote, irrespective of the number shares he holds or represents.
(2)On a poll at any meeting of a company, any member (including a body corporate) or his proxy shall be entitled to exercise all his voting rights as determined in accordance with this Act, but shall not be obliged to use all his votes or cast all the votes he uses in the same way.

175. Right to demand a poll

(1)Any provision in a company’s articles shall be void in so far as it would have the effect—
(a)of excluding the rights to demand a poll at a general meeting on any question other than the election of the chairman of the meeting or the adjournment of the meeting; or
(b)of rendering ineffective a demand for a poll made—
(i)by not less than five (5) members having the right to vote at such a meeting;
(ii)by a member or members representing not less than one-tenth of the total voting rights of all the members having the right to vote at the meeting; or
(iii)by a member or members entitled to vote at the meeting and holding in the aggregate not less than one-tenth of the issued share capital of the company.
(2)The instrument appointing a proxy to vote at a meeting of a company shall be deemed also to confer authority to demand or join in demanding a poll, and for the purposes of subsection (1), a demand by a person as proxy for a member shall be the same as a demand by the member.

Special resolution

176. Requirements for special resolutions

(1)A resolution by a company shall be a special resolution if at a general meeting of which not less than twenty-one (21) days’ notice has been given specifying the intention to propose the resolution as a special resolution, the terms and effect of the resolution and the reasons for it and at which members holding in the aggregate not less than one-fourth of the total votes of all the members entitled to vote thereat, are present in person or by proxy, the resolution has been passed, on a show of hands, by not less than three-fourths of the number of members of the company entitled to vote on a show of hands at the meeting who are present in person or by proxy or, where a poll has been demanded, by not less than three-fourths of the total votes to which the members present in person or by proxy are entitled.
(2)If less than one-fourth of the total votes of all the members entitled to attend the meeting and to vote thereat are present or represented at a meeting called for the purpose of passing a special resolution, the meeting shall stand adjourned to a day not earlier than seven (7) days and not later than twenty-one (21) days after the date of the meeting and the provisions of section 167(2) and (3) shall, mutatis mutandis, apply in respect of such adjournment.
(3)At an adjourned meeting under subparagraph (2) the members who are present in person or by proxy and are entitled to vote may deal with the business for which the original meeting was convened and a resolution passed by not less than three-fourths of such members shall be deemed to be a special resolution even is less than one-fourth of the total votes are represented at such adjourned meeting.
(4)With the consent of a majority in number of the members of a company having the right to attend and vote at such meeting and holding in the aggregate not less than ninety-five (95) per cent of the total votes of all such members, a resolution may be proposed and passed as a special resolution at a meeting of which less than twenty-one (21) clear days’ notice has been given. A copy of such consent shall be lodged with the Registrar together with the copy of the special resolution.
(5)A private