CHAPTER 46:02
BUSINESS REGISTRATION

ARRANGEMENT OF SECTIONS

SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Application and scope of this Act

PART II
THE REGISTRAR OF BUSINESSES

   4.   Registrar of Businesses

   5.   Powers of the Registrar

PART III
THE MALAWI BUSINESS REGISTRATION DATABASE

   6.   Establishment of the Malawi Business Registration Database

   7.   Use of technology and e-communications

   8.   Use of business registration number

   9.   Search of the Database

PART IV
REGISTRATION OF BUSINESSES

   10.   Duty to be registered

   11.   Form and particulars of registration

   12.   Registration of business and business name

   13.   Use of business names

   14.   Registration of changes in particulars

   15.   Cessation or transfer of business

   16.   Copy of business certificate

PART V
MISCELLANEOUS PROVISIONS

   17.   Immunity

   18.   Persons carrying on unlawful business

   19.   Compounding offences

   20.   Enforcement of duty to file returns

   21.   General offence and penalty

   22.   Regulations

   23.   Repeal and savings

   24.   Transitional provisions

12 of 2012
G.N. 11/2013

An Act to provide for the registration of persons carrying on business in Malawi and of their business names, the allocation of a single business registration number; and for matters connected therewith and incidental thereto

[27TH MAY 2013]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Business Registration Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

   "authorised officer" means an officer duly authorised in writing by the Registrar;

   "business" includes every form of trade, commerce or manufacture, craftsmanship, calling, profession, vocation or occupation or any other activity carried on by a person for the purposes of gain or profit;

   "business name" means the name or style under which a person carries on business;

   "business registration number" means the unique identification number allocated by the Registrar under section 12 (1);

   "certificate" means a certificate of business registration issued under section 12 (2);

   "electronic communication" means a communication transmitted, whether from one person to another, from one device to another device, or from a person to a device or vice versa by—

   (a)   means of a telecommunication system within the meaning of the Communications Act; or

   (b)   any other means in an electronic form;

   "company" means a company incorporated under the Companies Act;

   "electronic signature" means anything in electronic form as—

   (a)   is incorporated into or otherwise logically associated with any electronic communication or electronic data; and

   (b)   purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication or data, the integrity of the communication or data, or both;

   "Database" means the Malawi Business Registration Database established by section 6;

   "firm" means an unincorporated body consisting of two or more individuals, or one or more corporations, having constituted a partnership with a view to carrying on business;

   "local authority" has the same meaning as in the Local Government Act;

   "Malawi Investment and Trade Centre" means the Malawi Investment and Trade Centre incorporated under the Companies Act on 2nd December, 2010;

   "Malawi Revenue Authority" means the Malawi Revenue Authority established under the Malawi Revenue Authority Act;

   "National Statistical Office" means the National Statistical Office referred to in the Statistics Act;

   "person" includes any company or association or body of persons, corporate or unincorporate;

   "person responsible for the management of a business" includes every officer, individual, secretary, agent or employee who is at any time in charge, either solely or to a substantial extent, of the management of the business;

   "public sector agency" includes any Ministry, Government Department, local authority or statutory body;

   "Registrar" means the Registrar of Businesses under this Act; and

   "relevant permit" includes any licence, approval or other written formal authorization required from a public sector agency under any written law.

   (2) A person who has a place of business in Malawi shall be deemed to be carrying on business in Malawi for the purposes of this Act.

3.   Application and scope of this Act

   (1) The provisions of this Act shall apply to registration of the following businesses—

   (a)   sole proprietors; and

   (b)   partnerships.

   (2) This Act shall not exempt a person registered under this Act from complying with any other written law relating to businesses of a specific type.

   (3) This Act shall not apply to—

   (a)   any person carrying on business for the purpose of his livelihood with a turnover below the amount prescribed by the Minister; and

   (b)   any office or employment of a person.

   (4) Where a person carrying on business is required under this Act or any other Act or regulation to do any act, any person responsible for the management of the business for or on behalf of the first-mentioned person shall also be held liable for the doing of, or omission to do, that act.

PART II
THE REGISTRAR OF BUSINESSES

4.   Registrar of Businesses

   (1) The Registrar of Companies or such other person as the Minister may appoint shall be the Registrar of Businesses (hereinafter referred to as "Registrar"), who shall be responsible for the effective administration and application of this Act.

   (2) Anything in this Act authorised or required to be done by the Registrar or to be signed by the Registrar, may be done by or signed by the Deputy Registrar or Assistant Registrar and shall be valid and effectual as it done by or signed by the Registrar.

   (3) The Registrar shall have a seal and such seal shall bear the words "Registrar of Businesses, Malawi".

   (4) In the performance of the Registrar's duties under this Act, the Registrar shall be subject to—

   (a)   the general and special directions of the Minister, not inconsistent with the provisions of this Act; and

   (b)   for avoidance of doubt, the provisions of the Public Service Act.

5.   Powers of the Registrar

   (1) The Registrar or any authorised officer shall, for the purposes of ensuring compliance with this Act, have power at all reasonable times to inspect any premises at which the Registrar has reason to believe that business is being carried on in breach of this Act.

   (2) When exercising the power under subsection (1), the Registrar or any authorised officer shall declare his office and shall produce a written authority to any person affected by the exercise of such power.

   (3) Where the Registrar has reasonable cause to believe that any person registered under this Act is not carrying on business, he may send by registered post to the person a notice to the effect that if an answer showing cause to the contrary is not received within one month from the date thereof, the registration of the person and his certificate may be cancelled and the name under which the person carries on business removed from the Database.

   (4) Where the Registrar has reasonable cause to believe that a person may be adversely affected by matters contained in subsection (3), the Registrar may send the address of such person as listed in the application documents and deemed to be the address for some of that person by registered post to the person a copy of the notice referred to in subsection (3).

   (5) The Registrar shall have power at all times to—

   (a)   rectify any mistake in order to bring the entry in the Database relating to any person into conformity with the documents relating to the person furnished under this Act; and

   (b)   issue a new certificate to the person accordingly.

   (6) The Registrar shall, by notification in the Gazette, publish such particulars as the Registrar thinks fit in respect of a person whose registration and certificate have been cancelled under this Act.

   (7) Where the registration of a person is cancelled under this Act, the certificate issued to that person shall be deemed to have been cancelled.

PART III
THE MALAWI BUSINESS REGISTRATION DATABASE

6.   Establishment of the Malawi Business Registration Database

   (1) There is established for the purposes of this Act a central business registration Database, which shall be known as the Malawi Business Registration Database (hereinafter referred to as the "Database").

   (2) The Registrar shall be the repository of the information entered into the Database.

   (3) The Registrar shall manage the operation of the Database.

   (4) The Database shall consist of registered information on all persons entered into the registry including all entries, required to be entered under this Act, kept on electronic means on computer or other approved electronic device.

   (5) Any person may, upon payment of such fees and on such conditions as may be prescribed by the Registrar have access to the Database and obtain copies of any entry made or documents kept therein.

   (6) Subject to the Companies Act, the Registrar shall give, at all times, for the purposes of business facilitation, online access to the Database to—

   (a)   the Malawi Investment and Trade Centre;

   (b)   the Malawi Revenue Authority;

   (c)   the National Statistical Office;

   (d)   any local authority; and

   (e)   such other institution or authority as the Minister may designate by order published in the Gazette.

7.   Use of technology and e-communications

   (1) Notwithstanding anything to the contrary in this Act, the Registrar may authorise—

   (a)   any application or notification required under this Act;

   (b)   the payment of any registration fee or other fee; and

   (c)   the performance of any other act or thing which is required to be done under this Act,

to be made, notified or done electronically in such manner and through such computer system as may be approved by the Registrar.

   (2) With effect from such date as may be specified in the Gazette, the Registrar may direct that any matter, act or thing referred to in subsection (1) be made, notified or done electronically.

   (3) The Minister may make regulations for the better carrying out of this section including provisions as to the electronic form to be taken by any electronic communication or electronic storage to the Registrar and the use of electronic signatures.

   (4) For the purposes of this Act, an electronic signature incorporated into or associated with a particular electronic communication or particular electronic data is certified by any person if that person, whether before or after the making of the communication, has made a statement confirming that—

   (a)   the signature;

   (b) a means of producing communicating or verifying the signature; or

   (c)   a procedure applied to the signature.

   (5) In any legal proceedings—

   (a)   an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic data; and

   (b)   the certification by any person of such a signature, shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data or as to the integrity of the communication or data.

8.   Use of business registration number

   (1) Notwithstanding any written law, every person registered under this Act shall, in respect of every transaction he makes, use and indicate on any document, whether electronically or otherwise—

   (a)   his business registration number; and

   (b)   where the person with whom the transaction is made is registered under this Act, the business registration number of that person.

   (2) A public sector agency shall not issue any permit, approval or authorization to any person who is required to be registered under this Act unless the person holds a certificate.

   (3) Every public sector agency shall, in its dealings with a person who is required to be registered under this Act and in respect of whom a record is required to be kept under this Act, use and indicate in its records, whether electronically or otherwise, the business registration number of the person.

   (4) For the purposes of this section, any person or public sector agency may, in reasonable circumstances and for the purposes of ascertaining the identity of another person who is required to be registered under this Act, request the other person to produce his certificate.

   (5) Any person who fails to comply with subsection (1) commits an offence and shall be liable to a fine of K500,000.

9.   Search of the Database

   (1) A person may, upon payment of the prescribed fee, search the Database, and obtain a printed search result, in accordance with this Act.

   (2) The Database may be searched only by reference to the following criteria—

   (a)   the name and national identification number;

   (b)   the business name;

   (c)   any international standard industry code;

   (d)   the general nature of the business;

   (e)   the principal place of business and any other place where the business is carried on;

   (f)   the date or proposed date of commencement of the business; and

   (g)   such other information or particulars as may be prescribed.

   (3) A search of the Database may be carried out by any person for any lawful purpose.

   (4) Information in the Database shall have the same legal value as the information in the forms and documents submitted to the Registrar.

PART IV
REGISTRATION OF BUSINESSES

10.   Duty to be registered

   (1) Subject to the provisions of this Act, a person shall not carry out any business in Malawi unless that person is registered under this Act.

   (2) A person who is required to be registered under subsection (1) shall make an application to the Registrar for registration of his business and of his business name, including any name different from a name of an individual in cases of a partnership.

   (3) Where a person makes an application under subsection (2), he shall, at the same time, pay such registration fee as may be prescribed by the Registrar.

   (4) Where a person carries on business as a sole proprietor at more than one place of business or carries on two or more different commercial activities as a sole proprietor he shall register his business with the registry only once.

   (5) Any person who fails to comply with subsection (1) commits an offence and shall be liable to a fine of K100,000.

11.   Form and particulars of registration

   (1) An application to register a business shall be made in such form as may be prescribed by the Registrar and shall include—

   (a)   the full name and national identification number of the applicant;

   (b)   the business name of the applicant, if any;

   (c)   any international standard industry code;

   (d)   the general nature of the business;

   (e)   the principal place of business and any other place where the business is carried on;

   (f)   the date or proposed date of commencement of business; and

   (g)   such other information or particulars as may be required in the application form.

12.   Registration of business and business name

   (1) Where the Registrar is satisfied with the particulars of registration provided under section 11, he shall, subject to the other provisions of this Act—

   (a)   register the business and business name of the applicant in the Database; and

   (b)   allocate a business registration number to the applicant.

   (2) Upon the registration of a person in accordance with subsection (1) (a), the Registrar shall issue to the person a certificate.

   (3) Every certificate shall—

   (a)   bear—

      (i)   the business registration number;

      (ii)   the full name of the person;

      (iii)   the business name of the person, if any;

      (iv)   any international standard industry code;

      (v)   a concise description of the general nature of the business; and

      (vi)   the address of business and any other place where the business is to be carried on;

   (b)   distinctly indicate its date of issue or renewal; and

   (c)   be signed by the Registrar.

   (4) A person registered under this section shall not have more than one business registration number or more than one certificate in respect of the same business.

   (5) A person registered under this Act who, for any reason, has been allocated more than one business registration number or has been issued with more than one certificate in respect of the same business shall immediately notify the Registrar in writing and return the certificates to enable the Registrar to take the actions set out under subsection (6).

   (6) On receipt of a notification under subsection (5), the Registrar shall—

   (a)   cancel the returned certificates;

   (b)   allocate a new business registration number to the person mentioned in subsection (5);

   (c)   issue to the person mentioned in subsection (5) a new certificate; and

   (d)   amend the Database accordingly.

   (7) Subject to the other provisions of this Act, any registration under subsection (1) (a) and any certificate issued under subsection (2) shall be valid for a period of three years and shall be renewable for unlimited further periods of three years each.

   (8) On receipt of an application for the renewal of registration and certificate of Business Registration, the Registrar may require the applicant to furnish additional particulars or other information for the purposes of the renewal.

   (9) Nothing in this section shall be construed to require the Registrar to register any person or issue a certificate or renew the registration of a person or the certificate if the Registrar is not satisfied with the particulars or other information furnished under this Act.

   (10) The registration of a person or the issuance of a certificate, or the renewal of the registration of a person or the certificate, shall not be deemed to imply that the requirements of any enactment in relation to any business carried on by that person have been complied with.

   (11) A holder of a certificate shall display in a conspicuous place at the principal place of business and at every other place where the person carries on business a certified copy of the business certificate of Business Registration in force.

13.   Use of business names

   (1) A person who is registered under this Act shall not carry on business under a business name which has not been registered with the Registrar under section 12.

   (2) The registration of a business name under this Act is prohibited where apart from such registration, the use of the name is prohibited under any other written law.

   (3) Except with the written consent of the Minister and subject to any other written law, a person shall not be registered under a business name which includes—

   (a)   the word "Authority", "Corporation", "Government", "Malawi", "National", "President", "Presidential", "Regional", "Republic", "State", or any other word which is likely to suggest, that it enjoys the patronage of the Government or of a statutory corporation or of the Government of any other State; or

   (b)   the words "City", "Municipality" or "Council" or any other word which is likely to suggest, in connexion with a local authority in Malawi or elsewhere.

   (4) Where the Registrar is satisfied that a person registered under this Act carries on business, or any person applying for registration under this Act intends to carry on business, under a business name which—

   (a)   is identical in writing to, or so nearly resembles, the name of any other person or company carrying on business or the business name or trademark under which another person carries on business,

the Registrar may cancel the registration or refuse to register the person, as the case may be, unless the person changes the business name to a name which may be registered under this section, within thirty days from the date the Registrar requests the person to do so.

   (5) Any person aggrieved by a decision of the Registrar under subsection (4) may, within thirty days from the date of the notice of cancellation or refusal, appeal in writing to the Minister.

   (6) A person who contravenes subsection (1) commits an offence and shall be liable to a fine of K50,000.

14.   Registration of changes in particulars

   (1) Where a change is made, or occurs, in any of the particulars registered under this Act in respect of any person, the person shall, within fourteen days from the date he becomes aware of the change, notify the Registrar, in such medium and in such form as may be approved by the Registrar, of the nature and the date of the change.

   (2) Where the change under subsection (1) requires a change in the certificate of a person, the person shall, at the same time, return his certificate and all copies thereof to the Registrar.

   (3) On receipt of a notification under this section, the Registrar, upon being satisfied that the changes are according to the provisions of the current Act, shall—

   (a)   cancel the returned certificate;

   (b)   cause the Database to be amended accordingly; and

   (c)   where necessary, issue a new certificate.

   (4) The issuance of a new certificate shall be subject to payment of such fees as may be prescribed by the Registrar.

   (5) Any person who fails to comply with subsection (1) commits an offence and shall be liable to a fine of K50,000.

15.   Cessation or transfer of business

   (1) Where a person registered under this Act ceases to carry on business or sells or otherwise transfers his business, he shall, within fifteen days from the date of cessation, sale or transfer, notify the Registrar in writing, in such medium and in such form as may be approved by the Registrar, of the date of the cessation, sale or transfer and the full name of the buyer or transferee, as the case may be, and at the same time return his certificate and all copies thereof.

   (2) Where a person purchases or takes over a business, he shall notify the Registrar in writing, in such medium and in such form as may be approved by the Registrar, of the date of the purchase or take over and the full name of the seller or transferor, as the case may be, and at the same time return his certificate or Business Registration and all copies thereof, if any.

   (3) On receipt of a notification under subsection (1) or (2), the Registrar, upon being satisfied with the information provided, shall—

   (a)   cancel the returned certificate;

   (b)   cause the Database to be amended accordingly; and

   (c)   where necessary, issue a new certificate.

   (4) A person who fails to comply with subsection (1) or (2) commits an offence and shall be liable to a fine of K50,000.

16.   Copy of business certificate

   A person registered under this Act may, upon payment of the prescribed fee, have a copy of his certificate duly certified by the Registrar.

PART V
MISCELLANEOUS PROVISIONS

17.   Immunity

   (1) A person shall not bring an action against the Registrar or any officer in respect of any act done or omitted to be done by the Registrar or any of the Registrar's officers in the execution, in good faith, of functions under this Act.

   (2) Where the Registrar furnishes, electronically or otherwise, information relating to a person registered under this Act to any other person, neither the Registrar nor any of the Registrar's officers who is involved in the furnishing of such information shall be liable for any loss or damage suffered by any person, by reason of any error or omission, of whatever nature or however caused, if the error or omission is made in good faith and in the ordinary course of the discharge of the duties of the Registrar or officer or authorised agent or has occurred or arisen as a result of any defect or breakdown in the service or in any of the equipment used for the service.

18.   Persons carrying on unlawful business

   (1) Nothing in this Act shall be construed to require the Registrar to register a person who carries on any business which contravenes any written law.

   (2) Where a person registered under this Act carries on any business which contravenes any written law, the Registrar may cancel the registration and the certificate of the person shall be deemed to have been cancelled.

   (3) A person aggrieved by the decision of the Registrar under subsection (1) or (2) may make an application to the High Court for judicial review.

19.   Compounding offences

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