Companies - Winding Up Of Unregistered Associations (Ss 483-488)

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=1328

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[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.