ARRANGEMENT OF SECTIONS
1. Short title
Commissioner for Co-operative Development
3. Powers of the Minister to foster and encourage co-operative development
4. Appointment of Commissioner
5. Duties of Commissioner
6. Register of co-operative societies
7. Form of register
8. Societies which may be registered
9. Statement of co-operative principles
10. Application for registration
11. Name of society
12. Compulsory bye-laws
13. Requirements before registration
14. Power to request additional information
16. Refusal of registration
17. Provisional registration
Rights and Duties of Societies
18. Societies to be bodies corporate
19. Registered address
20. Amendment by bye-laws
21. Copy of Act and bye-laws to be open to inspection
22. Register of members and officers
23. Effect and proof of entry in books of a society
24. Disposal of produce to or through society
25. Charge and set-off extended to shares and interest in capital
26. Shares and other interests not liable to attachment
27. Transfer of interest on death
Rights and Liabilities of Members
28. Definition of member
29. Qualifications for membership
30. Minor's contracts with societies
31. Members not to exercise rights till payment made
32. Maximum size of share holding
33. Restrictions on membership in a society
35. Restrictions on transfer of shares
36. Liability of past members or estate of deceased members
37. Withdrawal from membership
38. Removal of persons ceasing to qualify for membership
Management and Administration
41. General meetings
42. Provisional committee
43. First general meeting
44. Annual General Meeting
45. Business at an Annual General Meeting
46. Special General Meeting
47. Notice of general meeting
48. Proceedings at general meeting
49. Committee of management
50. Election of committee
51. Qualification for election to the committee
53. Removal from the committee by the general meeting
54. Duties of the committee
55. Authentication of documents
56. Validity of acts of the committee
57. Delegation by the committee
58. Proceedings of the committee
59. Duty of care of the committee
60. Payments to officers
61. Election of chairman, secretary and treasurer
62. Duties of chairman
63. Duties of secretary
64. Duties of treasurer
65. Duties of manager
66. Optional power to appoint a supervisory board
Property and Funds
67. Creation of funds and sources of capital
68. Loans made by societies
69. Deposits and loans
70. Investment of funds
71. Restriction on capital expenditure
72. Statutory Reserve Fund
73. Distribution of net surplus
74. Commissioner's consent to payment
Accounts and Audit
75. Duty to keep accounting records
76. Records to be kept at the registered address
77. Accounting reference date
78. First accounting reference period
79. Duty of committee to prepare profit and loss account and balance sheet
80. Report by the committee
81. Annual accounts to be laid before the Annual General Meeting
82. Annual accounts to be lodged with the Commissioner
84. Nomination of external auditor
85. Fee of external auditor
86. Appointment of qualified head of audit section
87. Delegation of audit function to secondary society
88. Audit reports to members, committee and Commissioner
89. Co-operative Central Fund to replace Audit and Supervision Fund
Amalgamation and Division
90. Amalgamation of societies
91. Division of a society
92. Settlement of disputes
93. Case stated on question of law
95. Liquidation due to lack of membership
96. Appointment of liquidator
97. Liquidator's powers
98. Power of Commissioner to control liquidation
99. Appeal against orders
100. Limitation of the jurisdiction of a civil court
101. Closure of liquidation
102. Cancellation of registration
Powers of the Commissioner
103. Power to supply assistance
104. Commissioner may convene meetings
105. Miscellaneous powers of the Commissioner
106. Commissioner may attend meetings
107. Inspection of society
108. Discussion of inspection report
109. Investigation of a society
110. Restoration of misapplied property
111. Appointment of special officer
112. Appointment of special members
113. Removal of the committee by the Minister
114. Power of the Minister to make regulations
115. Power of the Minister to amend Schedules 2 and 3
116. Prohibition of the use of "co-operative" or "tshwaragano"
117. Use of Setswana at Commissioner's discretion
118. Enforcement of duty to make return
119. Notice of intention to sue society
121. Recovery of a society's property
122. Default penalty and default fine
123. Exemption from liability for acts or omissions of Government officers
124. Companies Act not to apply
Schedule 1 - Compulsory Bye-laws
Schedule 2 - Proceedings at General Meetings
Schedule 3 - Disputes Procedure
Act 5, 1989.
An Act to replace the Co-operative Societies Act of 1962 and to provide for the appointment of a Commissioner for Co-operative Development to supervise the formation, registration and management of Co-operatives and to encourage Co-operative development.
[Date of Commencement: 12th May, 1989]
Preliminary (ss 1-2)
This Act may be cited as the Co-operative Societies Act.
In this Act unless the context otherwise requires-
"accounting reference date" has the meaning given to it by section 77;
"accounting reference period" has the meaning given to it by section 78;
"bonus" means the share in the net surplus of a society divided amongst its members in accordance with section 73 subsection (5);
"bye-laws" means the registered bye-laws made by a society in exercise of any power conferred by this Act, and includes a registered amendment of the bye-laws;
"Commissioner" means the Commissioner for Co-operative Development appointed under section 4 and includes any person on whom any or all the powers of the Commissioner have been conferred in accordance with this Act;
"committee" means the committee of management of a society;
"Co-operative Central Fund" means the Fund established under section 89;
"dividend" means a share of the net surplus of a society divided amongst its members in proportion to the share capital held by them;
"honorarium" means a share in the net surplus of a society divided amongst some or all of the members of the committee, chairman, the secretary or the treasurer in consideration of their services which would not otherwise be remunerated;
"legal personal representative" in relation to a person who is dead means the person who in law or in customary law, whichever may be applicable, represents the estate of that person;
"officer" means the chairman, vice-chairman, secretary, treasurer, members of the committee or of any supervisory board or manager of a society and includes any employee or other person empowered under this Act, any regulations or the bye-laws of a society to give directions in regard to the business of a society or to supervise such business;
"primary society" means a society whose membership is restricted to individuals;
"producers society" means a society one of whose objects is the provision of paid work for its members;
"school society" means a society whose membership is restricted to the pupils and staff of a school;
"secondary society" means a society whose membership is restricted to societies registered under this Act; such societies may be primary societies or secondary societies or both;
"society" means a co-operative society registered in terms of this Act;
"society with limited liability" means a society in which the liability of its members is limited by its bye-laws to-
(a) the amount unpaid on the shares held by them; or
(b) such amount as they may undertake to contribute to the assets of the society in the event of its being liquidated;
"society with unlimited liability" means a society the members of which are jointly and severally liable-
(a) for all its obligations; and
(b) to contribute to any deficit in its assets in the event of its liquidation;
"special resolution" means a resolution passed by a majority of not less than three-fourths of the members present and voting at a general meeting of which due notice has been given of the intention to propose the resolution as a special resolution and at which not less than one-half of the total membership is present.
Commissioner for Co-operative Development (ss 3-7)
The Minister in consultation with the Commissioner shall take such measures as he may see fit for the registration and supervision of co-operative societies and for the encouragement of the development of a self-reliant co-operative movement providing for the economic interests and welfare of its members within the framework of the policies for national development.
(1) The Minister shall appoint by notice in the Gazette a Commissioner for Co-operative Development and may appoint a Deputy Commissioner and Assistant Commissioners for Co-operative Development along with such other persons as may be necessary to assist the Commissioner in carrying out the purposes of this Act; and the Minister may confer on any such persons all or any of the powers of the Commissioner under this Act.
(2) Any power or duty imposed on the Commissioner by this Act may be exercised or performed by a Deputy Commissioner if-
(a) the Commissioner is unable to exercise or perform that duty or power owing to illness or absence; or
(b) the Commissioner authorizes the Deputy Commissioner in writing to exercise or perform that power or duty.
(1) The Commissioner shall-
(a) register co-operative societies and ensure their compliance with this Act;
(b) encourage the formation of co-operative societies by providing information on co-operative principles and practice and by facilitating registration;
(c) assist the organisation and efficient operation of co-operative societies;
(d) provide advice and training for officers of co-operative societies, their members and employees;
(e) carry out such other duties as may be assigned by this Act or the Minister.
(2) The Commissioner shall present an annual report to the Minister on the operation of this Act and the societies registered under it.
(3) The Commissioner may establish consultative procedures with the co-operative movement in Botswana to secure efficient co-operative development.
(4) Where a secondary society has been registered under this Act which includes in its objects the provision of educational and advisory services for co-operative enterprises the Commissioner may authorize the secondary society to provide information, assistance and advice on co-operative principles and practice, and on co-operative management to facilitate the registration of a proposed society and the efficient operation of existing societies.
The Commissioner shall keep or cause to be kept at his office a register of co-operative societies in which shall be entered particulars relating to the registration of societies and their bye-laws, and which shall be open to inspection by the public at all reasonable times and free of charge.
(1) The Commissioner shall maintain such registers as may be necessary to carry out the provisions of this Act.
(2) The Minister may by regulation prescribe the form in which such registers shall be maintained.
(3) Until such time as any new register may be prepared and opened, the Commissioner shall continue to keep the register in use immediately prior to the commencement of this Act.
Registration (ss 8-17)
A society which has as its principal object the promotion of the economic interests of its members in accordance with co-operative principles, or a society established with the object of facilitating the operations of such a society, and complying with the provisions of this Act, may be registered under it, with or without limited liability.
For the purpose of this Act "co-operative principles" shall inter alia mean that-
(a) membership is voluntary and open to all, men and women, able to use the services of the society;
(b) the services of the society are mainly provided for its members;
(c) the society is democratically controlled;
(d) the surplus of the society is distributed in a fair and just manner amongst its members with a limited dividend on share capital;
(e) the society promotes education and training on co-operative matters for its members;
(f) societies co-operate at local, national and international levels.
(1) An application to register a society shall be submitted to the Commissioner on the prescribed form which shall be signed-
(a) (i) in the case of a primary society that is a producers co-operative society, by at least 15 persons qualified for membership in terms of section 29; or
(ii) in the case of a primary society that has as its object the promotion of thrift and the acceptance of savings from and the making of loans to its members for productive and provident purposes, by at least 50 persons qualified for membership in terms of section 29; or
(iii) in the case of any other primary society, by at least 20 persons qualified for membership in terms of section 29;
(b) in the case of a secondary society by two authorized officers of at least two societies.
(2) The application shall be accompanied by-
(a) 3 copies of the bye-laws in English;
(b) a report on the viability of the proposed society which shall be in the prescribed form or as near thereto as circumstances permit;
(c) in the case of an application relating to a secondary society, copies of the resolutions authorizing the participation of the primary societies;
(d) the prescribed fee.
(1) No society shall be registered by a name which is identical with that of a registered society, or so closely resembles such a name as to mislead members of the public as to its identity or which is, in the opinion of the Commissioner, undesirable.
(2) The word "co-operative" shall form part of the name of every society and the word "limited" shall be the last word in the name of every society registered with limited liability.
The bye-laws of a society shall, inter alia, include provision for the matters detailed in Schedule 1 and shall be adequate for the efficient running of the society.
Before registering a proposed society the Commissioner shall be satisfied that-
(a) the society is a bona fide co-operative society;
(b) the name and bye-laws of the society comply with sections 11 and 12;
(c) there is a reasonable expectation of benefit to the members of the society;
(d) the application complies with the provisions of this Act.
The Commissioner may request any additional information that he considers necessary about the proposed society, including-
(a) the economic or other need for the establishment of the society;
(b) the number of persons expected to become members when the society begins its activities;
(c) the availability of sufficient capital to be subscribed by the applicants and other persons expected to become members;
(d) the availability of officers capable of managing the affairs of the society and keeping the records and accounts required for its efficient operation and for complying with this Act;
(e) the educational and advisory work on co-operative principles and the operation of the society carried out amongst the applicants and the other persons expected to become members.
(1) If the Commissioner approves the registration of the society he shall issue a certificate of registration to the society together with a copy of the bye-laws certified by him as having been approved and registered.
(2) A certificate of registration signed by the Commissioner shall be conclusive evidence that the society mentioned in it is duly registered, unless it is proved that the registration of the society has been cancelled.
(3) On registration the Commissioner shall supply, free of charge, a copy of this Act and any regulations made hereunder.
(1) If the Commissioner refuses to register a society he shall give his reasons for his refusal in writing to the applicants.
(2) An appeal shall lie to the Minister within one month from the date of refusal.
(3) The Minister's decision on the appeal shall be final.
(1) If the Commissioner is not satisfied that a proposed society ought to be registered at the time of the application for registration but is of the opinion that steps can and will be taken with diligence, by the persons by whom or on whose behalf the application is made, to comply with all the conditions for registration, he may provisionally register the society for such period not exceeding two years and subject to such conditions as he may specify:
Provided that it shall be competent for the applicants for registration of a proposed society to apply for provisional registration only.
(2) A society which has been provisionally registered shall, subject to the conditions of this section and any conditions specified by the Commissioner, have all the status and powers of a society registered under this Act and be entitled to operate as a society.
(3) The fact that a society is provisionally registered shall be legibly stated on all documents issued by the society and on every other place where the society's name is displayed to the public.
(4) The Commissioner may cancel the provisional registration of a society, without assigning any reason, by a notice in writing addressed to the society; the notice of cancellation shall operate as a refusal to register the society in terms of section 16 and from the date of service of the notice the society shall cease to be registered as a society.
(5) If upon the expiry of the period for provisional registration the society has not been registered, the society shall cease to be registered as a society.
(6) Where either subsection (4) or subsection (5) apply-
(a) the provisions of Part XI shall operate for the settlement of the society's affairs;
(b) the Commissioner shall by notice require surrender of the certificate of provisional registration to him for cancellation;
(c) the validity of any transaction by or with the society entered into prior to the cancellation or cessation of its registration shall not be affected by such cancellation or cessation.
(7)(a) If at any time during the period of provisional registration the Commissioner is satisfied that the society complies with the conditions for registration and ought to be registered he may register the society under section 15 and the society shall thereupon be deemed to have been registered on the date of its provisional registration.
(b) The society shall on registration surrender the certificate of provisional registration to the Commissioner who shall then issue a certificate of registration bearing the date of registration in terms of paragraph (a).
Rights and Duties of Societies (ss 18-27)
(1) From the date of issue of the certificate of registration a society shall be a body corporate by the name under which it is registered, capable of exercising all the functions of an incorporated society having perpetual succession but with such liability on the part of its members to contribute to the assets of the society in the event of its being wound up as is mentioned in this Act.
(2) All societies, primary or secondary, shall have the power to form secondary societies to facilitate their operations or to provide such other services as may be necessary for their members.
(1) A society shall have an address registered in accordance with this Act to which all notices and communications may be addressed; and the secretary shall, within 14 days thereof, notify the Commissioner in writing of any change in that address and the Commissioner shall record such change in the register.
(2) A society shall display its name in legible letters on the outside of every place or office in which its business is carried on.
(3) A society shall include its name in all business letters, notices, other official documents and publications of the society and on its common seal.
(1) A society may amend its bye-laws, including a change of name, by a special resolution of the members passed at a general meeting convened for that purpose.
(2) Within 14 days from the passing of an amendment of the bye-laws, three copies of the amendment accompanied by the prescribed form shall be sent to the Commissioner who shall, subject to the provisions of subsection (3), register the amendment and the amendment shall thereupon come into effect.
(3) The Commissioner shall refuse to register any amendment that is, in his opinion, contrary to the provisions of this Act or regulations made hereunder.
(4) If the Commissioner registers the amendment, he shall issue a certified copy of the amendment to the society, which shall be conclusive evidence of due registration.
(5) If the Commissioner refuses to register an amendment, he shall record his reasons therefor and notify them to the society along with his decision.
(6) The Society may appeal therefrom to the Minister within one month from the date of the decision, and the Minister's decision on such appeal shall be final.
(7) An amendment which changes the name of a society shall not affect any right or obligation of the society or its members or past members, and any legal proceedings pending may be commenced or continued by or against the society under its new name.
(8) A change in the registered address of a society shall not, where the address forms part of the bye-laws, be an amendment of the bye-laws.
A society shall keep at its registered address and open inspection, without charge, by its members and the public-
(a) a copy of this Act and any regulations made hereunder;
(b) a copy of its bye-laws;
(c) a list of its members.
A society shall keep-
(a) a register of members in which shall be entered-
(i) the name, address and occupation of each member;
(ii) the date on which each person was entered in the register and the date on which any person ceased to be a member;
(iii) the value of shares held by each member and the amounts paid up thereon;
(iv) the nominee appointed under section 40;
(b) a register of officers showing the offices, the holders of the offices and the dates of appointment and termination of officers;
(c) such other books as may be prescribed by the Commissioner.
(1) The register of members shall be evidence of any matters directed or authorized by this Act to be entered therein.
(2) A copy of an entry in a book of a society regularly kept in the course of business shall, if certified in the manner prescribed in subsection (3), be received in any legal proceedings as evidence of the existence of the entry and of the matters contained in it, and shall be admissible to the same extent as the original entry.
(3) A copy of an entry may be certified by a declaration, written at the foot of the copy, that it is a true copy of the entry and that the book containing the entry is still in the custody of the society; the declaration shall be signed by one committee member and the secretary of the society.
(4) No officer of a society shall in any legal proceedings to which the society is not a party be compelled to produce any of the books of a society, the contents of which can be proved by a certified copy under subsections (2) and (3), or to appear as a witness to prove any matter so recorded, unless the court, for special reasons, so directs.
(1) A society which has as one of its objects the disposal of any article produced or obtained by the work of its members, whether the produce of agriculture, animal husbandry, fisheries, forestry, handicraft, the manufacture of goods or otherwise, may either provide in its bye-laws or otherwise contract with its members-
(a) that every member who produces or obtains any specified article shall dispose of the whole or any specified proportion thereof to or through the society; and