NAMIBIA Law and Practice Contributed by: Nadine van Schalkwyk, Ralph Strauss, Bonita R de Silva, Ivo dos Santos, Chrissie Turck, Jané Louw, Nicole Freygang and Natasha Nekuta, Dr. Weder, Kruger & Haikali Inc.
structures. However, they must register locally under Section 322 of the Companies Act 28 of 2004 and appoint a resident person authorised to accept ser - vice of process and ensure domestic filing compli - ance. 3.5 Directors’, Officers’ and Shareholders’ Liability The liability of directors and officers of a company is primarily governed by the Companies Act 28 of 2004 and common law. In terms of the common law, the following general duties are imposed upon directors: • the duty to act with care, skill and diligence; and • the fiduciary duty to conduct the company’s affairs honestly and in the interest of the company. The duty of care requires a director to exercise appro - priate caution and demonstrate due consideration when exercising the company’s powers, while also taking reasonable steps to safeguard the company’s assets. The duty of skill requires directors to exercise a rea - sonable level of skill in the performance of their duties. Where a director is appointed on the basis of a particu - lar skill set or expertise, the required standard of skill will be measured against that reasonably expected of a person possessing such knowledge and experience. The duty of diligence requires a director to remain attentive, careful, and conscientious, applying con - sistent effort towards carrying out the business responsibilities entrusted to them. The fiduciary duties of a director fall into two general categories, namely (i) to exercise the powers vested in the director in good faith and (ii) to avoid a conflict of interest between the personal interest of the director and those of the company. The particular duties that arise from the general duty to act in good faith are: • to exercise the vested powers independently and not limit or restrict them;
• to exercise the vested powers for the purposes for which they were conferred; • to exercise the vested powers within the limits of the authority; and • to act within the scope of the powers of the com - pany. The particular duties that arise from the general duty to avoid conflicts of interests are: • to act bona fide in the interest of the company; • to account for profits; • not to misappropriate opportunities proposed or pursued by the company; • not to compete improperly with the company; and • to disclose any interest in contracts with the com - pany. Namibian law recognises the concept of “piercing the corporate veil” and the Namibian courts will do so under specific circumstances as recognised under the common law or stipulated in the Companies Act. Employment relationships in Namibia are primarily regulated by two main sources: statutory law and common law contracts. The Labour Act 11 of 2007 is the principal legislation governing most aspects of the employment relationship, including employment contracts, working conditions, employee rights, and dispute resolution. The Act strongly promotes the pro - tection of employees’ rights. In addition, employment contracts concluded between employers and employ - ees regulate the specific terms and obligations of the employment relationship, provided that these terms comply with the Labour Act and other applicable laws, including the common law of contracts. Where disputes cannot be resolved through contractual or statutory mechanisms, case law becomes important during mediation, arbitration, and litigation processes. Courts and labour tribunals interpret legislation and contractual provisions, thereby providing legal clarity and establishing precedents for future cases. 4. Employment Law 4.1 Nature of Applicable Regulations
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