NAMIBIA Law and Practice Contributed by: Professor Michael Katz, Wolf Wohlers, Karin Malherbe and Stefanie Busch, ENS Namibia (incorporated as Lorentz Angula Inc.)
• in terms of Section 250 (2) of the Companies Act, 2004, any resolution of directors in the form of a written resolution signed by the directors is deemed to be a minute of a meeting; and • Section 76 of Table B further provides that a reso - lution in writing, signed by all the directors, shall be as valid and effectual as if it had been passed at a meeting of the directors duly convened and held. Shareholders make decisions at general meetings by way of resolutions: • a company must hold its first annual general meet - ing within 18 months after the date of its incorpora - tion, and thereafter not more than 15 months shall elapse between the date of one annual general meeting and that of the next; • general meetings may be convened by two or more members holding not less than one-tenth of the issued share capital of the company, as provided by Section 188 (2) of the Companies Act, 2004; • directors must also convene a general meeting on the requisition of 100 members or members holding not less than one-twentieth of the capital carrying voting rights, as provided by Section 189 (1) of the Companies Act, 2004; • unless a special resolution is required, resolutions are passed by a simple majority of votes; and • in terms of Section 207 (1) of the Companies Act, 2004, a special resolution requires not less than 21 days’ notice specifying the intention to propose the resolution as a special resolution, and must be passed by not less than three-fourths of the votes of members present in person or by proxy who are entitled to vote at the meeting.
In terms of Section 216 (1) of the Companies Act, 2004: • every public company must have at least two directors; and • every private company must have at least one director. In terms of Section 216 (2) of the Companies Act, 2004, until directors have been appointed, every sub - scriber to the memorandum of a company is deemed, for all purposes, to be a director of the company. 3.2 Board Members Executive and Non-Executive Directors The NamCode recognises the distinction between executive and non-executive directors. Executive directors are involved in the day-to-day management and are typically full-time salaried employees of the company. Non-executive directors are not involved in the day-to-day running of the business and should therefore enjoy a greater degree of detachment, objectivity and independence when considering the company’s affairs. However, the Companies Act, 2004 does not distin - guish between the duties of executive and non-exec - utive directors. Both categories of directors owe the same fiduciary and statutory duties to the company. Chairperson The directors may elect a chairperson of their meet - ings and determine the period for which the chairper - son is to hold office. If no chairperson is elected, the directors present may elect one of their number to be chairperson of the meeting. For listed companies, the NSX requires that the chief executive officer must not also hold the position of chairperson. 3.3 Board Composition General Requirements There are no specific statutory requirements regard - ing the composition of boards in Namibia beyond the minimum number of directors. The Companies Act, 2004 does not mandate the appointment of independ - ent directors, nor does it prescribe any specific board diversity requirements.
3. Directors and Officers 3.1 Board Structure
Namibian law adopts a unitary board structure, mean - ing that a company has a single board of directors responsible for both the management and supervision of the company. There is no legal requirement for a two-tier board structure with separate management and supervisory boards.
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