Section 2: Interpretation

2. Interpretation (1) In this Act, unless the context otherwise requires— “accounting period” means, in relation to a company or any other body corporate, the period in respect of which the financial statements of the company or the other body corporate are made up, whether that period is a year or not; “agency deed”— (a) means a deed executed by a company or a debenture holders’ representative in relation to the issue of debentures; and (b) includes a supplemental document, resolution or scheme of arrangement modifying the terms of the deed and a deed substituted therefor; “annual meeting” means the annual meeting of the shareholders of a company required to be held under section 115; “annual report” means the annual report required to be prepared under section 218; “annual return”— (a) means the annual return required to be filed under section 223; and (b) includes any document attached to or intended to be read with the return; “approved valuer” means— (a) a qualified auditor; (b) a land surveyor; (c) a registered professional engineer; (d) a qualified architect; (e) a chartered quantity surveyor; (f) a chartered surveyor; or (g) any other person designated as such by the Minister, by public notice; “arrangement” includes a re-organisation of the share capital of a company by the consolidation of shares of different classes or by the division of shares into shares of different classes or by both these methods; “articles”— (a) means the articles of association of an existing company; and C35 – 9 [Issue 10] Companies Act (b) includes, so far as they apply to the company, the provisions contained in Table A of the Fourth Schedule to the Companies Act 1913 or in Table A and Table B of the First Schedule to the Companies Act 1984; “Authorised Company” has the same meaning as in the Financial Services Act; “authorised mutual fund” means a company set up as a collective investment scheme as defined in the Securities Act; “balance sheet date” has the meaning assigned to it in section 216; “banking company” means a bank licensed under the Banking Act; “benefits”, in relation to a director— (a) includes a fee, percentage or other payment, and the money value of any consideration, allowance or perquisite, given directly or indirectly, to him in relation to the management of the affairs of the company or of a related company, whether as a director or otherwise; and (b) does not include an amount given in payment or reimbursement of out-of-pocket expenses incurred for the benefit of the company; “Board” and “directors” have the meaning set out in section 128; “book” includes any account, deed, writing or document, and any other record of information however compiled, recorded or stored; “borrowing company” means a company that is or is to be under a liability to repay any money received or to be received by it in response to an invitation to the public to subscribe for or purchase debentures; “branch register” means— (a) in relation to a company, a branch register of shareholders required to be kept under section 92; (b) in relation to a foreign company, a branch register of shareholders required to be kept under Part XXII; “carrying on business”, for the purpose of Part XXII, has the meaning assigned to it in section 274; “CBRIS” or “Companies and Businesses Registration Integrated System” means, for the purposes of this Act, the Business Registration Act, the Foundations Act, the Limited Partnerships Act and the Limited Liability Partnerships A register of shareholders required to be kept under section 92; (b) in relation to a foreign company, a branch register of shareholders required to be kept under Part XXII; “carrying on business”, for the purpose of Part XXII, has the meaning assigned to it in section 274; “CBRIS” or “Companies and Businesses Registration Integrated System” means, for the purposes of this Act, the Business Registration Act, the Foundations Act, the Limited Partnerships Act and the Limited Liability Partnerships Act 2016, the electronic system operated by the Registrar for— (a) the filing of particulars, financial statements and other documents; and (b) the payment of fees; [Issue 10] C35 – 10 Revised Laws of Mauritius “certified” means— (a) in relation to a copy or extract of a document, certified in such manner as the Registrar may approve to be a true copy or extract of the document; and (b) in relation to a translation of a document, certified in such manner as the Registrar may approve to be a correct translation of the document into the English or French language; “charge”— (a) means— (i) a mortgage; continued on page C35 – 11 C35 – 10 (1) [Issue 10] Revised Laws of Mauritius (ii) a fixed or floating charge made under Articles 2202 to 2202-55 of the Code Civil Mauricien; (iii) a deposit of a share or debenture certificate made under Articles 2129-1 to 2129-6 of the Code Civil Mauricien; (iv) a pledge of shares or debentures; (v) a lien over a motor vehicle under Articles 2100 to 2111 of the Code Civil Mauricien (Du gage sans déplacement sur les vehicules automobiles); (vi) a lien over plant and equipment under Articles 2112 to 2129 of the Code Civil Mauricien (Du gage sans déplacement sur I’outillage et materiel d’equipement professionnel, industriel ou agricole); (vii) a charge on a ship or aircraft; (viii) an agreement to give a charge; and (ix) any attachment on the proceeds to be paid by the Sugar Syndicate; but (b) does not include— (i) a hire purchase agreement; (ii) rents, rent-charges and annuities granted or reserved out of land; “class” has the meaning assigned to it in section 114; “collective investment scheme” has the same meaning as in the Securities Act; “Commission” means the Financial Services Commission established under the Financial Services Act; “Companies Special Deposit Account” means the account referred to in section 315 (3A); “company” means a company incorporated or registered under this Act and includes an existing company; “company limited by guarantee” means a company formed on the principle of having the liability of its members limited by its constitution to such amount as the members may respectively undertake to contribute to the assets of the company in the event of its being wound up; “company limited by shares” means a company formed on the principle of having the liability of its shareholders limited by its constitution to any amount unpaid on the shares respectively held by the shareholder; “company limited by shares and by guarantee” means a company formed on the principle of having the liability of its members— (a) who are shareholders, limited to the amount unpaid, if any, on the shares respectively held by them; and (b) who have given a guarantee, limited, to the respectively amount they have undertaken to contribute, from time to time, and in the event of it being wound up; C35 – 11 [Issue 9] Companies Act “Conservator of Mortgages” means the Conservator of Mortgages appointed under the Registrar-General Act; “constitution” means the constitution of a company referred to in section 42; “continued in Mauritius” or “continued”, in relation to a company, means a company incorporated outside Mauritius which is registered under Part XXV and continued as a company under this Act; “contributory”— (a) means a person liable to contribute to the assets of a company in the event of its being wound up; and (b) includes the holder of fully paid shares in the company; “corporation”— (a) means a body corporate, including a foreign company or any other body corporate incorporated outside Mauritius or a partnership formed or incorporated or existing in Mauritius or elsewhere; but (b) does not include— (i) a statutory corporation; (ii) a corporation sole; (iii) a registered co-operative society; (iv) a trade union; or (v) a registered association; “Court” means the Bankruptcy Division of the Supreme Court; “Curator” means the Curator appointed under the Curatelle Act; “date of incorporation” means the date of registration of the company; “debenture”— (a) means a written acknowledgement of indebtedness issued by a company in respect of a loan made or to be m elsewhere; but (b) does not include— (i) a statutory corporation; (ii) a corporation sole; (iii) a registered co-operative society; (iv) a trade union; or (v) a registered association; “Court” means the Bankruptcy Division of the Supreme Court; “Curator” means the Curator appointed under the Curatelle Act; “date of incorporation” means the date of registration of the company; “debenture”— (a) means a written acknowledgement of indebtedness issued by a company in respect of a loan made or to be made to it or to any other person or money deposited or to be deposited with the company or any other person or the existing indebtedness of the company or any other person whether constituting a charge on any of the assets of the company or not; and (b) includes— (i) debenture stock; (ii) convertible debenture; (iii) a bond or an obligation; (iv) loan stock; (v) an unsecured note; or [Issue 9] C35 – 12 Revised Laws of Mauritius (vi) any other instrument executed, authenticated, issued or created in consideration of such a loan or existing indebtedness; but (c) does not include— (i) a bill of exchange; (ii) a promissory note; (iii) a letter of credit; (iv) an acknowledgement of indebtedness issued in the ordinary course of business for goods or services supplied; (v) a policy of insurance; or (vi) a deposit certificate, pass book or other similar document issued in connection with a deposit or current account at a banking company; “debenture holders’ representative” means a person designated as such in an agency deed; “debenture stock”— (a) means a debenture by which a company or a debenture holders’ representative acknowledges that the holder of the stock is entitled to participate in the debt owing by the company under the agency deed; and (b) includes loan stock; “director” has the same meaning as in section 128; “distribution”, in relation to a distribution by a company to a shareholder, means— (a) the direct or indirect transfer of money or property, other than the company’s own shares, to or for the benefit of the shareholder; or (b) the incurring of a debt to or for the benefit of the shareholder, in relation to shares held by that shareholder, and whether by means of a purchase of property, the redemption or other acquisition of shares, a distribution of indebtedness, or by some other means; “dividend” has the meaning assigned to it in section 63; “document”— (a) means a document in any form; and (b) includes— (i) any writing on any material; (ii) a book, graph or drawing; (iii) information recorded or stored by any electronic or other technological means and capable, with or without the aid of equipment, of being reproduced; C35 – 13 [Issue 10] Companies Act “dormant company” means a company recorded by the Registrar under Part XXIV as being a dormant company; “employee” means a person who has entered into, or works in Mauritius under, an agreement or a contract of service or apprenticeship with a company, whether by way of manual labour, clerical or managerial work, or otherwise, and however remunerated; “entitled person”, in relation to a company, means— (a) a shareholder; and (b) a person upon whom the constitution confers any of the rights and powers of a shareholder; “executive” means an employee who has been given responsibility for some section of the activities of a company; “executive director” means a director who is involved in the day-to-day management of the company; “existing company” means a body corporate incorporated or r or managerial work, or otherwise, and however remunerated; “entitled person”, in relation to a company, means— (a) a shareholder; and (b) a person upon whom the constitution confers any of the rights and powers of a shareholder; “executive” means an employee who has been given responsibility for some section of the activities of a company; “executive director” means a director who is involved in the day-to-day management of the company; “existing company” means a body corporate incorporated or registered or deemed to be registered under Part III of this Act or under the Companies Act 1984, or under the Companies Act 1913 or the International Companies Act 1994; “expert” means an approved valuer or any other person whose profession gives authority to a statement made by him; “filing” means lodging a document with the Registrar and having the document accepted for registration by the Registrar; “financial statements” has the meaning assigned to it in section 217; “firm” means the association formed by persons who enter into a partnership or société not registered under this Act or the Companies Act 1984 or the Companies Act 1913; “floating charge” has the same meaning as in the Code Civil Mauricien; “foreign company” means a body corporate that is incorporated outside Mauritius and that is required to be registered under Part XXII; “Global Business Licence” has the same meaning as in the Financial Services Act; “group financial statements” has the meaning assigned to it in section 217; “group of companies” means a parent company and all its subsidiaries; “heir” includes a legatee, an executor and a personal representative; “hire purchase agreement” has the same meaning as in the Hire Purchase and Credit Sale Act; “holding company” has the meaning assigned to it in section 3; [Issue 10] C35 – 14 Revised Laws of Mauritius “inspector” means an inspector designated or appointed under Part XV; “insurance company” means a company licensed under the Insurance Act; “interested”, in relation to a director, has the meaning assigned to it in section 147; “interests register” means the register required to be kept under section 190 (2) (c); “International Accounting Standards”— (a) means the International Accounting Standards issued by the International Accounting Standards Committee, the International Financial Reporting Standards issued by the International Accounting Standards Board, the Accounting Standards issued by the Accounting and Auditing Organization for Islamic Financial Institutions, and any Standards, by whatever name called, issued by these bodies or their successor bodies; and (b) includes the Interpretations of the Standing Interpretations Committee of the International Accounting Standards Committee, the International Financial Reporting Interpretations Committee of the International Accounting Standards Board, and any Interpretations, by whatever name called, issued by the Interpretations Committees of the above bodies or their successor bodies; “International Standards on Auditing” means the International Standards on Auditing issued by International Federation of Accountants; “investment company” means a company whose business consists of investing its funds principally in securities with the aim of spreading investment risks and giving members of the company the benefit of the results of the management of its funds; “Islamic banks” means banks licensed as such by the Bank of Mauritius; “Islamic financial institutions” means fina ies; “International Standards on Auditing” means the International Standards on Auditing issued by International Federation of Accountants; “investment company” means a company whose business consists of investing its funds principally in securities with the aim of spreading investment risks and giving members of the company the benefit of the results of the management of its funds; “Islamic banks” means banks licensed as such by the Bank of Mauritius; “Islamic financial institutions” means financial institutions licensed as such by the Financial Services Commission; “law firm” has the same meaning as in the Law Practitioners Act; “law practitioner” has the same meaning as in the Law Practitioners Act; “legal consultant” has the same meaning as in the Law Practitioners Act; “limited company” means a company limited by shares or by guarantee or a company limited both by shares and by guarantee; “limited liability partnership” has the same meaning as in the Limited Liability Partnerships Act 2016; “liquidator” includes the Official Receiver acting as the liquidator; “listed company” means a company, the shares or class of shares of which are listed on a securities exchange licensed under the Securities Act; C35 – 15 [Issue 10] Companies Act “major transaction” has the meaning assigned to it in section 130 (2); “management company” has the same meaning as in the Financial Services Act; “manager” means— (a) in relation to a receivership, a person appointed under Part IX of the Companies Act 1984 to carry on a company’s activities and dispose of its undertaking; (b) in circumstances other than under paragraph (a), the principal executive of a company, whether or not that person is a director; “member” means— (a) a shareholder within the meaning of section 99; and (b) in the case of a company limited by guarantee, a person whose name is entered in or who is entitled to have his name entered in the register of members; “memorandum” means the memorandum of association of an existing company; “Minister” means the Minister to whom responsibility for the subject of corporate affairs is assigned; “microenterprise” has the same meaning as in the Small and Medium Enterprises Act; “minority interest” means that part of the net results of operations and of net assets of a subsidiary attributable to interests which are not owned directly or indirectly through subsidiaries by the parent; “nominee” means a person who, in exercising a right in relation to a share, debenture or other property, is entitled to exercise that right only in accordance with instructions given by some other person either directly or through the agency of one or more persons, and a person is the nominee of another person where he is entitled to exercise such a right only in accordance with instructions given by that other person; “non-executive director” means a director who is not involved in the day-to-day management of the company; “offer” includes an invitation to make an offer; “offeree” means a holder of shares which are included in a take-over offer; “officer”, in relation to a corporation, means a director, a Secretary or an executive; “Official Receiver” means the Official Receiver referred to in the Bankruptcy Act; [Issue 10] C35 – 16 Revised Laws of Mauritius “one person company”— (a) means a private company in which the only shareholder is also the sole director of the company; and (b) does not include a company in which the only shareholder is a corporation; “open-ende ” means a holder of shares which are included in a take-over offer; “officer”, in relation to a corporation, means a director, a Secretary or an executive; “Official Receiver” means the Official Receiver referred to in the Bankruptcy Act; [Issue 10] C35 – 16 Revised Laws of Mauritius “one person company”— (a) means a private company in which the only shareholder is also the sole director of the company; and (b) does not include a company in which the only shareholder is a corporation; “open-ended fund” means a collective investment scheme under the Securities Act; “ordinary resolution” has the meaning assigned to it in section 104 (2); “parent”, in relation to a corporation, means a corporation that has one or more subsidiaries; continued on page C35 – 17 C35 – 16 (1) [Issue 10] Revised Laws of Mauritius “partnership” means any civil or commercial partnership including a société; “person concerned”, in relation to a corporation, includes— (a) a person who is or has been employed by a corporation as a director, banker, auditor, attorney-at-law, notary or otherwise; (b) a person who, or in relation to whom there are reasonable grounds for suspecting that he— (i) has in his possession any property of the corporation; (ii) is indebted to the corporation; or (iii) is able to give information concerning the promotion, formation, management, dealing, affairs or property of the corporation; “pre-emptive rights” means the rights conferred on shareholders under section 55; “printed” includes typewritten or lithographed or reproduced by any mechanical, electronic, photographic or other process; “private company” means a company incorporated or registered in Mauritius as a private company and which has the characteristics referred to in Part XXI; “property”— (a) means property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal; and (b) includes rights, interests and claims of every kind in relation to property however they arise; “qualified auditor” means a person who is qualified to be appointed as an auditor under section 198; “qualified Secretary” means a person who is qualified to be appointed as a Secretary under section 165; “records” means the records and documents required to be kept by a company under sections 190 and 191; “register” or “register of companies” means the register required to be kept under section 11; “registered” means registered under this Act, the Companies Act 1984, the International Companies Act 1994 or the Companies Act 1913; “registered agent” has the same meaning as in the Financial Services Act; “registered association” has the same meaning as in the Registration of Associations Act; C35 – 17 [Issue 7] Companies Act “registered co-operative society” has the same meaning as in the Cooperatives Act; “registered office” has the meaning assigned to it in section 187; “Registrar” means the Registrar of Companies appointed under section 10; “Registrar-General”— (a) means the Registrar-General appointed under the RegistrarGeneral Act; and (b) includes the authorised officer under the Registration and Transcription of Deeds and Inscription of Mortgages, Privileges and Charges (Rodrigues) Act; “related company” has the meaning assigned to it in subsection (2); “relative”, in relation to any person, means— (a) any parent, spouse, child, brother or sister of that person; (b) any parent, child, brother or sister of a spouse of that person; or (c) a nominee or trustee of any person referred to in paragraph (a) or (b); “relevant interest” has the meaning assigned to it in section 154; “reporting issuer” has the same meaning as in the Securities Act; “secured creditor”, in relation to a company, means a person entitled to a charge on or over property owned by that company; “securities” has the same meaning as in the Securities Act; “securities exchange” has the same meaning as in the Securities Act; “SEM” means the securities exchange operated by Stock Exchange of Mauritius Ltd; “service address”— (a) means the address at which documents may be served; and (b) includes the address of a registered office; “share” means a share in the share capital of a company; “share register” means the share register required to be kept under section 91; “shareholder” has the meanin curities” has the same meaning as in the Securities Act; “securities exchange” has the same meaning as in the Securities Act; “SEM” means the securities exchange operated by Stock Exchange of Mauritius Ltd; “service address”— (a) means the address at which documents may be served; and (b) includes the address of a registered office; “share” means a share in the share capital of a company; “share register” means the share register required to be kept under section 91; “shareholder” has the meaning assigned to it in section 99; “signed”— (a) means subscribed by a person under his hand with his signature; and (b) includes the signature of the person given electronically where it carries that person’s personal encryption; [Issue 7] C35 – 18 Revised Laws of Mauritius “small enterprise” has the same meaning as in the Small and Medium Enterprises Act; “small private company” has the same meaning assigned to it by subsections (5), (6) and (7); “solvency test” has the meaning assigned to it in section 6; “special meeting” means a meeting called in accordance with section 116; “special resolution” means a resolution approved by a majority of 75 per cent or, if a higher majority is required by the constitution, that higher majority, of the votes of those shareholders entitled to vote and voting on the question; “spouse”, in relation to a person, includes a person with whom that person has a relationship in the nature of marriage; “stated capital” has the meaning assigned to it in section 7; “Stock Market” means a securities market operated by a securities exchange; “subsidiary” has the meaning assigned to it in section 3; “substantial shareholder” means a person in Mauritius or elsewhere, who holds by himself or his nominee, a share or an interest in a share which entitles him to exercise not less than 5 per cent of the aggregate voting power exercisable at the meeting of shareholders; “surplus assets” means the assets of a company remaining after the payment of creditors’ claims and available for distribution in accordance with Part XI of the Companies Act 1984 prior to its removal from the register of companies; “trade union” has the same meaning as in the Employment Relations Act; “unanimous resolution” means a resolution which has the assent of every shareholder entitled to vote on the matter which is the subject of the resolution and either— (a) given by voting at a meeting to which notice to propose the resolution has been duly given and of which the minutes of the meeting duly record that the resolution was carried unanimously or; (b) where the resolution is signed by every shareholder or his agent duly appointed in writing signed by him, the resolution in this case may consist of one or more documents in similar form (including letters, facsimiles, electronic mail or similar means of communication) each signed by the shareholder concerned or his agent; “unanimous shareholder agreement” means a unanimous shareholder agreement entered into pursuant to section 272; “unlimited company” means a company formed on the principle of having no limit placed on the liability of its shareholders; “virtually wholly owned subsidiary” has the meaning assigned to it in section 3 (6); C35 – 19 [Issue 10] Companies Act “wholly owned subsidiary” has the meaning assigned to it in section 3 (5); “winding up resolution” means a resolution passed for the winding up of a company; “writing” includes— (a) the recording of words in a permanent or legible form; and (b section 272; “unlimited company” means a company formed on the principle of having no limit placed on the liability of its shareholders; “virtually wholly owned subsidiary” has the meaning assigned to it in section 3 (6); C35 – 19 [Issue 10] Companies Act “wholly owned subsidiary” has the meaning assigned to it in section 3 (5); “winding up resolution” means a resolution passed for the winding up of a company; “writing” includes— (a) the recording of words in a permanent or legible form; and (b) the display of words by any form of electronic or other means of communication in a manner that enables the words to be readily stored in a permanent form and with or without the aid of any equipment to be retrieved and read; “year” means a calendar year. (2) In this Act, a company is related to another company where— (a) the other company is its holding company or subsidiary; (b) more than half of the issued shares of the company, other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital, is held by the other company and companies related to that other company (whether directly or indirectly, but other than in a fiduciary capacity); (c) more than half of the issued shares, other than shares that carry no right to participate beyond a specified amount in a distribution of either profits or capital, is held by members of the other company (whether directly or indirectly, but other than in a fiduciary capacity); (d) the businesses of the companies have been so carried on that the separate business of each company, or a substantial part of it, is not readily identifiable; or (e) there is another company to which both companies are related. (3) For the purpose of subsection (2), a company within the meaning of section 2 of the Companies Act 1984 is related to another company if, were it a company within the meaning of subsection (1), it would be related to that other company. (4) A reference in this Act to an address means— (a) in relation to an individual, the full address of the place where that person usually lives; or (b) in relation to a body corporate, its registered office or, if it does not have a registered office, its principal place of business. (5) A company shall be a “small private company” where— (a) it is a private company the turnover of which in respect of its last preceding accounting period is less than 50 million rupees or such other amount as may be prescribed; and [Issue 10] C35 – 20 Revised Laws of Mauritius (b) it is not a company holding a Global Business Licence. (6) (a) In the application of subsection (5) to any period which is an accounting period for a company but not in fact a year, the maximum figure for turnover in subsection (5) (a) shall be proportionately adjusted. (b) For the purpose of subsection (5)— “last preceding accounting period” means the period immediately preceding the current period in respect of which the financial statements of the company are required to be made up. (7) A private company which is incorporated after 1 December 2001 shall qualify as a small private company in respect of its first accounting period. [S. 2 amended by s. 4 (a) of Act 20 of 2002 w.e.f. 1 December 2001; s. 5 (a) of Act 14 of 2005 w.e.f. 10 November 2004; s. 156 (1) (a) of Act 22 of 2005 w.e.f. 28 September 2007; s. 6 (a) of Act 15 of 2006 w.e.f. 7 August 2006; s. 5 (a) of Act 18 of 2008 w.e.f. 19 July 2008; s. 7 (a) of Act 14 of 2009 w.e.f. 30 July 2009; re required to be made up. (7) A private company which is incorporated after 1 December 2001 shall qualify as a small private company in respect of its first accounting period. [S. 2 amended by s. 4 (a) of Act 20 of 2002 w.e.f. 1 December 2001; s. 5 (a) of Act 14 of 2005 w.e.f. 10 November 2004; s. 156 (1) (a) of Act 22 of 2005 w.e.f. 28 September 2007; s. 6 (a) of Act 15 of 2006 w.e.f. 7 August 2006; s. 5 (a) of Act 18 of 2008 w.e.f. 19 July 2008; s. 7 (a) of Act 14 of 2009 w.e.f. 30 July 2009; s. 5 (a) of Act 27 of 2012 w.e.f. 22 December 2012; s. 10 (a) of Act 9 of 2015 w.e.f. 14 May 2015; s. 9 (a) of Act 18 of 2016 w.e.f. 7 September 2016; s. 69 (1) (a) of Act 24 of 2016 w.e.f. 3 January 2017; s. 11 (a) of Act 10 of 2017 w.e.f. 24 July 2017; s. 13 (a) of Act 11 of 2018 w.e.f. 1 October 2018.]