[Ch4201s483]483.   Unregistered association defined

            An unregistered association shall mean any syndicate, association or partnership having a place of business in Botswana which consists of more than seven members and is not a company or an external company.

[Ch4201s484]484.   Winding up of unregistered association

            (1) An unregistered association may, subject to the provisions of this Part, be wound up under this Act, and all the provisions of Part XXVI (except the provisions of section 470 to 477 inclusive) and of the winding-up rules made under section 523 shall mutates mutandis apply to such an association, and to its directors, officers or members with the exceptions and additions as contained in subsections (2) to (6).

            (2) The head office or principal place of business in Botswana shall for all the purposes of the winding up be deemed to be the registered office of the association.

            (3) An unregistered association shall be wound up under this Act voluntarily.

            (4) The circumstances in which an unregistered association may be wound up are as follows -

     (a)     if the association is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs;

     (b)     if the association is unable to pay its debts; or

     (c)     if the court is of opinion that it is just and equitable that the association should be wound up.

            (5) An unregistered association shall, for the purposes of this Act, be deemed to be unable to pay its debts if -

     (a)     a creditor to whom the association is indebted in a sum exceeding P1,000 then due, has served on the association a demand requiring the association to pay the sum so due, by leaving it at the association’s principal place of business, or by delivering it to the secretary or director, manager or other principal officer of the association, or by serving it in such other manner as the court may allow, and if the association has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the satisfaction of the creditor;

     (b)     in respect of any action or other proceeding instituted against any member of the association for any debt or demand due, or claimed to be due, from the association or from him in his capacity as a member thereof, notice in writing of the institution of such action or proceeding has been served on the association by leaving such notice at its principal place of business, or by delivering it to the secretary, or a director, manager or other principal officer of the association, or by serving the same in such other manner as the court may allow and if the association has for 10 days thereafter neglected to pay, secure or compound for the debt or demand, or to procure a stay of the action or proceeding, or to indemnify the defendant member to his reasonable satisfaction against the action or proceeding, and against all costs, damages and expenses incurred or to be incurred by him by reason of or in defending the same at the instance of the association;

     (c)     execution or other process issued on a judgment decree or order obtained in any court in favour of a creditor against the association, or any member thereof as such, or any person authorised to be sued as nominal defendant on behalf of the association, is returned unsatisfied by the sheriff or messenger with the endorsement that no asset could be found to satisfy the debt or that the assets found were insufficient to do so; or

     (d)     it is proved to the satisfaction of the court that the association is unable to pay its debts; and in determining whether an association is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the association;

            (6) A member of an unregistered association being wound up under this section shall be deemed to be an officer of the association for the purposes of sections 478 to 482 inclusive.

[Ch4201s485]485.   Contributories

            (1) In the event of an unregistered association being wound up, every person shall be deemed to be a contributory who is liable to pay or contribute to the payment of-

     (a)     any debt or liability of the association;

     (b)     any sum for the adjustment of the rights of the members amongst themselves; or

     (c)     the costs and expenses of winding up the association,

and every contributory shall be liable to contribute to the assets of the association all sums due by him in respect of such liability as aforesaid.

            (2) In the event of the death or insolvency of any contributory or the assignment of his estate under the Insolvency Act, Cap. 42:02 then section 367 shall, mutatis mutandis, apply.

[Ch4201s486]486.   Power of court to stay or restrain proceedings

            (1) The provisions of section 372 with respect to staying and restraining actions and proceedings against a company at any time after the presentation of a petition for winding up and before the making of a winding up order shall, in the case of an unregistered association, where the application to stay or restrain is by a creditor, extend to actions and proceedings against any contributory of the association.

            (2) Where an order has been made for winding up an unregistered association, no action or proceeding shall be proceeded with or commenced against any contributory of the association in respect of any debt of the association, except by leave of the court, and subject to such terms as the court may impose.

[Ch4201s487]487.   Directions as to property in certain cases

            If an unregistered association has no power to sue and be sued in a common name, or if for any reason it appears expedient, the court may by the winding up order, or by any subsequent order, direct that all or any part of the property belonging to the association, or to trustees on its behalf, is to vest in the liquidator by his official name, and thereupon the property or the part thereof specified in the order shall vest accordingly; and the liquidator may, after giving such indemnity, if any, as the court may direct, bring or defend in his official name any action or other legal proceedings relating to that property or necessary to be brought or defended for the purpose of effectually winding up the association and recovering its property.

[Ch4201s488]488.   Provisions of this Part cumulative

            The provisions of this Part with respect to unregistered associations shall be deemed to be in addition to and not in restriction of any provisions contained in this Act with respect to winding up companies by the court, and the court or liquidator may exercise any powers or do any act in the case of unregistered associations which might be exercised or done by it or him in winding up companies registered under this Act but an unregistered association shall not, except in the event of its being wound up, be deemed to be a company under this Act, and then only to the extent provided by this Part.