The constitutionality of section 417 of the Companies Act 61 of 1973 and section 423 of Companies Act 28 of 2004

Abstract

Abstract provided by author

The Namibian constitution requires that prominence and protection be given to the fundamental rights and freedoms contained in chapter three thereof. Protection of the fundamental rights and freedoms requires that the state pass national legislation and policy that are specifically consistent with the provisions of chapter three of the constitution

There are a number of controversial questions surrounding the constitutionality of section 417 of the Companies Act and subsequently section 423 of the companies Act , 2004. This is an issue that has been long standing under our law, but one to which little attention has been given by our courts so far

The dissertation looks into the constitutionality of the above stated sections. The object is to investigate within reasonable limits the discretional power granted to the court and commissioners in s 417 proceedings and its impact on the constitutional rights of the examinees. This is done in relation to Namibian law. However, it has been necessary to regard and borrow from South African law. The consideration of South African law is important because of the legal historical relationship between the two countries and much more because legal developments in the two jurisdiction holds persuasive and in some cases binding authority

Firstly, the paper will focus on section 417 of the companies Act of 1973 and its impact on constitutional provisions. The purpose of this exposition is to expose the perceived shortcomings of the given section in a constitutional perspective. Thereafter, the paper will compare and contrast section 417 of the companies Act, 1973 to section 423 of the Companies Act 2004, focusing on the impact of section 423 on the current situation. It must be noted that during the research and writing of this dissertation the 2004 Act was not yet in force

The conclusion will attempt to highlight the perceived shortcomings in the two sections, theimpact of section 423 on the current position and suggest any possible solution

The writer accepts and remains responsible for all incorrect restatement and inaccuracies contained herein, regarding the law and any misquotes of the opinion of authors referred to herein. Any such misconstructions were unintentional and to be regretted.