)

177.   Method of contracting

            (1) An obligation which, if entered into by a natural person, would, by law, be required to be in writing and signed by that person and notarially executed, may be entered into on behalf of the company in writing signed under the name of the company by -

     (a)     two or more directors of the company;

     (b)     if there is only one director, by that director whose signature shall be witnessed;

     (c)     if the constitution of the company so provides, a director, or other person or class of persons whose signature or signatures shall be witnessed; or

     (d)     one or more attorneys appointed by the company in accordance with section 178, and may in the same manner be varied or discharged.

            (2) An obligation which, if entered into by individual persons, is, by law, required to be in writing, may be entered into on behalf of the company in writing by a person acting under the company’s express or implied authority and may in the same manner be varied or discharged.

            (3) An obligation which, if entered into by individual persons, is not, by law, required to be in writing, may be entered into on the behalf of the company in writing or orally by a person acting under the company’s express or implied authority and may in the same manner be varied or discharged.

            (4) Nothing in subsection (1) limits or prevents a company entering into a contract or other enforceable obligation in writing under a common seal, if it has one.

            (5) Subsection (1) applies to a contract or other obligation

     (a)     whether or not that contract or obligation was entered into in Botswana; and

     (b)     whether or not the law governing the contract or obligation is the law of Botswana.

            (6) 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.

178.   Attorneys

            (1) Subject to its constitution, a company may, by an instrument in writing executed in accordance with section 177(1), appoint a person as its attorney either generally or in relation to a specified matter.

            (2) An act of the attorney in accordance with the instrument binds the company.

            (3) The law relating to powers of attorney shall apply, with the necessary modifications, in relation to a power of attorney executed by a company to the same extent as if the company was a natural person and as if the commencement of the liquidation or, if there is no liquidation, the removal from the register, of the company was the death of a person.

179.   Pre-incorporation contracts may be ratified

            Any contract made in writing by a person professing to act as 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 duly registered as if it had been duly formed, incorporated and registered at the time when the contract was made if the contract or a certified copy thereof is delivered to the Registrar simultaneously with the application for incorporation in terms of section 21.

180.   Warranties implied in pre-incorporation contracts

            (1) Notwithstanding any enactment or rule of law, in a pre-incorporation contract, unless a contrary intention is expressed in the contract, there is an implied warranty by the person who purports to make the contract in the name of, or on behalf of, the company -

     (a)     that the company will be incorporated within such period as may be specified in the contract, or if no period is specified, then within a reasonable time after the making of the contract; and

     (b)     that the company will ratify the contract within such period as may be specified in the contract, or if no period is specified, then within a reasonable time after the incorporation of the company.

            (2) The amount of damages recoverable in an action for breach of a warranty implied by subsection (1) of this section is the same as the amount of damages that would be recoverable in an action against the company for damages for breach by the company of the unperformed obligations under the contract if the contract had been ratified by the company.

            (3) If, after its incorporation, a company enters into a contract in the same terms as, or in substitution for, a pre-incorporation contract (not being a contract ratified by the company under section 179), the liability of a person under subsection (1) of this section (including any liability under an order made by the court for the payment of damages) is discharged.

181.   Failure to ratify

            (1) A party to a pre-incorporation contract that has not been ratified by the company after its incorporation may apply to the court for an order -

     (a)     directing the company to return property, whether real or personal, acquired under the contract to that party;

     (b)     for any other relief in favour of that party relating to that property; or

     (c)     validating the contract whether in whole or in part.

            (2) The court may, if it considers it just and equitable to do so, make any order or grant any relief it considers appropriate and may do so whether or not an order has been made under section 180(2).

182.   Registered office

            (1) A company shall always have a registered office in Botswana to which all communications and notices may be addressed and which shall constitute the address for service of legal proceedings on the company.

            (2) Subject to section 184, the registered office of a company at a particular time is the place that is described as its registered office in the register of companies at that time.

183.   Description of registered office

            (1) The description of the registered office shall state the address of the registered office.

            (2) Where the registered office is at the offices of any firm of a chartered accountant, attorney at law, or any other person, such description shall state-

     (a)     that the registered office of the company is at the offices of that firm or person; and

     (b)     particulars of the location in any building of those offices.

184.   Change of registered office

            (1) Subject to the company’s constitution and to subsection (3), the Board of a company may change the registered office of the company at any time.

            (2) Notice in the prescribed form of such change shall be given to the Registrar for registration within 21 days of the change.

            (3) The change in the registered office takes effect on a date stated in the notice not being a date that is earlier than five working days after the notice is registered.

185.   Requirement to change registered office

            (1) Subject to this section, a company shall change its registered office if it is required to do so by the Registrar.

            (2) The Registrar may require a company to change its registered office by notice in writing delivered or sent to the company at its registered office.

            (3) The notice shall-

     (a)     state that the company is required to change its registered office by a date stated in the notice, not being a date that is earlier than 20 working days after the date of the notice;

     (b)     state the reasons for requiring the change;

     (c)     state that the company has the right to appeal to the court under section 15;

     (d)     be dated and signed by the Registrar.

            (4) A copy of the notice shall also be sent to each director of the company.

            (5) The Company shall change its registered office-

     (a)     by the date stated in the notice; or

     (b)     if it appeals to the court and the appeal is dismissed, within five working days after the decision of the court.

            (6) If a company fails to comply with this section, every director of the company shall be guilty of an offence and liable to the penalty set out in section 492(1).

186.   Company records

            (1) Subject to subsection (3) and to sections 84 and 190, a company shall keep the following documents at its registered office or at such place within Botswana as is notified to the Registrar under subsection (4)-

     (a)     the constitution of the company;

     (b)     minutes of all meetings and resolutions of shareholders within the last seven years;

     (c)     the interests register if the company keeps or is required to keep one;

     (d)     minutes of all meetings and resolutions of directors and directors’ committees within the last 10 years;

     (e)     certificates given by directors under this Act within the last seven years;

     (f)      the full names and addresses of the current directors and secretary;

     (g)     copies of all written communications to all shareholders or all holders of the same class of shares during the last seven years, including annual reports made under section 212;

     (h)     copies of all financial statements and group financial statements required to be completed by section 205 to 208 for the last seven completed accounting periods of the company;

     (i)      the accounting records required by section 190 for the current accounting period and for the last seven completed accounting periods of the company;

     (j)      the share register required to be kept under section 83;

     (k)     the register of charges required to be kept under section 121(1);

     (l)      the register of debentures required to be kept under section 121(2); and

     (m)    the copies of instruments creating or evidencing charges required to be registered under section 125.

            (2) The references in paragraphs (b), (d), (e), and (g) of subsection (1) to seven years and the references in paragraphs (h) and (i) of that subsection to seven completed accounting periods include such lesser periods as the Registrar may approve by notice in writing to the company.

            (3) Any of the records referred to in subsection (1) may be kept at a place in Botswana other than the registered office of the company only with the prior approval in writing of the Registrar provided that the accounting records may be kept at another place within Botswana provided the company complies with section 190(2).

            (4) The Registrar shall record the place approved for the keeping of records under subsection (3) and that record shall be available for inspection under section 13.

            (5) If a company fails to comply with subsection (1)-

     (a)     the company shall be guilty of an offence and liable to the penalty set out in section 492(2);

     (b)     every director of the company shall be guilty of an offence and liable to the penalty set out in section 493(2).

187.   Form of records

            (1) The records of a company required to be kept by section 186 shall be kept-

     (a)     subject to subsection (3) in the English language;

     (b)     in written form; or

     (c)     in a form or in a manner that allows the documents and information that comprise the records to be easily accessible and convertible into written form.

            (2) The Board shall ensure that adequate measures exist to-

     (a)     prevent the records being falsified; and

     (b)     detect any falsification of them.

            (3) A close company may keep the records referred to in section 186(1) (b), (d) and (g) in the English or Setswana languages.

            (4) If the Board fails to comply with subsection (2) of this section, every director shall be guilty of an offence and liable to the penalty set out in section 493(2).

188.   Inspection of records by directors

            (1) Subject to subsection (2), every director of a company is entitled, on giving reasonable notice, to inspect the records of the company-

     (a)     in written form; and

     (b)     without charge; and

     (c)     at a reasonable time specified by the director.

            (2) The court may, on application by the company, if it is satisfied that-

     (a)     it would not be in the company’s interests for a director to inspect the records; or

     (b)     the proposed inspection is for a purpose that is not properly connected with the director’s duties,

     (c)     direct that the records need not be made available for inspection or limit the inspection of them in any manner it considers appropriate.