Indigenisation bill

Indigenisation and Economic Empowerment Bill, 2007

ARRANGEMENT OF SECTIONS

PART I

Preliminary

Section

1. Short title and date of commencement.

2. Interpretation.

PART II

Indigenisation and economic empowerment: General Objectives and Measures

3. Objectives and measures in pursuance of indigenisation and economic empowerment.

4. Power of Minister to review and approve indigenisation and empowerment arrangements.

5. Enforcement of notification requirement

6. Referral to the Minister of proposed notifiable transactions in respect of which no counterparties have yet been identified.

PART III

Establishment and Functions of the National Indigenisation and Economic Empowerment BOARD

7. Establishment and appointment of the National Indigenisation and Economic Empowerment Board.

8. Functions of Board.

9. Chief executive officer and staff of Board.

10. Reports of Board.

11. Minister may give Board directions in national interest.

part iv

National Indigenisation and Economic empowerment fund

12. Establishment and objects of National Indigenisation and Economic Empowerment Fund.

13. Unit Trust Account of National Indigenisation and Economic Empowerment Fund.

14. Composition of Fund.

15. Administration of Fund.

16. National Indigenisation and Economic Empowerment Charter.

part v

Levies

17. Imposition of levies.

18. Failure to pay, collect or remit levies.

part vi

general and transitional

19. Minister may request information

20. Appeals.

21. Regulations.

22. Transfer of assets, obligations, etc. of National Investment Trust to Fund.

23. Transfer of employees of National Investment Trust to Board and conditions of service of transferred employees

First Schedule: Provisions applicable to the Board and committees.

Second Schedule: Rules of the Unit Trust Account of the Fund.

Third Schedule: Provisions Applicable to the Administration of the Fund

Fourth Schedule: National Indigenisation and Economic Empowerment Charter

1st Draft: 3rd October, 2006

2^nd Draft: 28^th September, 2006

3^rd Draft: 16^th February, 2007

4^th Draft: 21^st February, 2007

5^th Draft: 28^th February, 2007

7th Draft 13th March, 2007

8th Draft 23rd March, 2007

9th Draft 29th March 2007

10th Draft 10th May 2007

BILL

To provide for support measures for the further indigenisation of the economy; to provide for support measures for the economic empowerment of indigenous Zimbabweans ; to provide for the establishment of the National Indigenisation and Economic Empowerment Board and to provide for its functions and management; to provide for the establishment of the National Indigenisation and Economic Empowerment Fund; to provide for the establishment of the National Indigenisation and Empowerment Charter; and to provide for matters connected with or incidental to the foregoing.

ENACTED by the President and the Parliament of Zimbabwe.

PART I

Preliminary

1 Short title and date of commencement

(1) This Act may be cited as the Indigenisation and Economic Empowerment Act [Chapter ].

(2) This Act shall come into operation on a date to be fixed by the President by statutory instrument.

2 Interpretation

(1) In this Act—

“Board ” means the National Indigenisation and Empowerment Board established in terms of section 7(1);

“business” means any company, association, syndicate or partnership of persons that has for its object the acquisition of gain by the company, association, syndicate or partnership, or by the individual members thereof, whether the business registered in terms of the Companies Act [Chapter 24:03] or otherwise;

“business association” means any voluntary organisation representing the interests of any class of business;

“chairperson” means chairperson of the Board appointed in terms of section 7(2);

“Charter” means the National Indigenisation and Empowerment Charter set out in the Fourth Schedule;

“chief executive officer” means the chief executive officer of the Board appointed in terms of section 9;

“controlling interest”, in relation to—

(a) a company, means the majority of the voting rights attaching to all classes of shares in the company;

(b) any business other than a company, means any interest which enables the holder thereof to exercise, directly or indirectly, any control whatsoever over the activities or assets of the business;

“employee share ownership scheme or trust” means an arrangement the dominant purpose or effect of which is to enable employees of a company or group of companies to participate in or receive profits or income arising from the acquisition, holding, management or disposal of the stock, shares or debentures of the company or group of companies concerned:

Provided that such stock, shares or debentures are held on behalf of the employees in a trust or in the form of units in an employee unit trust scheme registered or exempted in terms of the Collective Investment Schemes Act, 1997 (No. 25 of 1997);

“empowerment” means the creation of an environment which enhances the performance of the economic activities of indigenous Zimbabweans into which they would have been introduced or involved through indigenisation;

“fixed date” means the date fixed in terms of section 1(2) as the date of commencement of this Act;

“Fund” means the National Indigenisation and Economic Empowerment Fund, established in terms of section 12;

“indigenisation” means a deliberate involvement of indigenous Zimbabweans in the economic activities of the country, to which hitherto they had no access, so as to ensure the equitable ownership of the nation’s resources;

“indigenous Zimbabwean” means any person who, before the 18th April, 1980, was disadvantaged by unfair discrimination on the grounds of his or her race, and any descendant of such person, and includes any company, association, syndicate or partnership of which indigenous Zimbabweans form the majority of the members or hold the controlling interest;

“member” means a member of the Board;

“Minister” means Minister of State for Indigenisation and Empowerment or any other Minister to whom the President may, from time to time, assign the administration of this Act;

“private company” means a company as defined in section 33(1) of the Companies Act [Chapter 24:03];

“public company” means any company which is not a private company or a company licensed under section 26 of the Companies Act [Chapter 24:03];

“statutory body” means a corporate body established directly by or under any enactment for special purposes specified in that enactment by Parliament;

“vice-chairperson”, means vice chairperson of the Board appointed in terms of section 7(2).

PART II

Indigenisation and economic empowerment: General Objectives and Measures

3 Objectives and measures in pursuance of indigenisation and economic empowerment

(1) The Government shall, through regulations under this Act or any other law, endeavour to secure that—

(a) at least fifty-one per centum of the shares of every public company and any other business shall be owned by indigenous Zimbabweans;

(b) no—

(i) merger or restructuring of the shareholding of two or more related or associated businesses; or

(ii) acquisition by a person of a controlling interest in a business;

that requires to be notified to the Competition Commission in terms of Part IVA of the Competition Act [Chapter 14:28] shall be approved unless—

(iii) a fifty-one per centum (or such lesser share as may be temporarily prescribed for the purposes of subsection (5)) in the merged or restructured business is held by indigenous Zimbabweans; and

(iv) the indigenous Zimbabweans referred to in subparagraph (iii) are equitably represented in the governing body of the merged or restructured entity;

(c) no unbundling of a business or demerger of two or more businesses shall, if the value of any business resulting from the unbundling or demerger is at or above a prescribed threshold, be approved unless—

(i) fifty-one per centum (or such lesser share as may be temporarily prescribed for the purposes of subsection (5)) in any such resulting business is held by indigenous Zimbabweans; and

(ii) the Zimbabweans referred to in subparagraph (i) are equitably represented in the governing body of any such resulting business;

(d) no relinquishment by a person of a controlling interest in a business, if the value of the controlling interest is at or above a prescribed threshold, shall be approved unless the controlling interest (or such lesser share thereof as may be temporarily prescribed for the purposes of subsection (5)) is relinquished to indigenous Zimbabweans; and

(e) no projected or proposed investment in a prescribed sector of the economy available for investment by domestic or foreign investors for which an investment licence is required in terms of the Zimbabwe Investment Authority Act [Chapter] shall be approved unless a controlling interest in the investment (or such lesser share thereof as may be temporarily prescribed for the purposes of subsection (5)) is reserved for indigenous Zimbabweans;

(f) all Government departments, statutory bodies and local authorities and all companies shall procure at least fifty per centum of their goods and services required to be procured in terms of the Procurement Act [Chapter 22:15] from businesses in which a controlling interest is held by indigenous Zimbabweans;

(g) where goods and services are procured in terms of the Procurement Act [Chapter 22:14] from businesses in which a controlling interest is not held by indigenous Zimbabweans, any subcontracting required to be done by the supplier shall be done to the prescribed extent in favour of businesses in which a controlling interest is held by indigenous Zimbabweans.

(2) For the purposes of subsection (1)(d), the relinquishment of a controlling interest in a business—

(a) does not include the donation or disposal otherwise than for value of a business to—

(i) a member of the family of the person relinquishing it; or

(ii) any other partner or shareholder of the business, in the case of a business that is a private company or partnership;

(b) includes the disposal of business or of a subsidiary, unit or division of a business that is capable of being operated as a separate business by the liquidator of a company or other body corporate or the trustee of an insolvent estate.

(3) The objectives or measures specified in subsection (1) may be implemented by the Government specifically on behalf of any one or more of the following groups indigenous Zimbabweans—

(a) women; and

(b) young persons under a prescribed age; and

(4) The Minister may, by notice in a statutory instrument, prescribe anything that may be prescribed under subsection (1) or (3):

Provided that the Minister shall not prescribe anything for the purposes of—

(a) subsection (1)(b), except after consultation with the Minister for the time being responsible for the Competition Act [Chapter 14:28];

(b) subsection (1)(c), except after consultation with the Minister for the time being responsible for the Zimbabwe Investment Authority Act [Chapter ];

(c) subsection (1)(h) and (i), except after consultation with the Minister for the time being responsible for the Procurement Act [Chapter 22:14];

(5) The Minister may prescribe that a lesser share than fifty-one per centum or a controlling interest may be acquired by indigenous Zimbabweans in any business referred to in subsections (1)(b)(iii), (1)(c)(i), (1)(d) and (e) in order to achieve compliance with those provisions, but in so doing he or she shall prescribe the general maximum timeframe within which the fifty-one per centum share or the controlling interest shall be attained.

(6) In order to ensure that the government’s policies and objectives of indigenisation and economic empowerment are implemented, the Minister shall carry out an indigenisation and empowerment assessment rating of every company which rating shall be done in the prescribed manner.

4 Power of Minister to review and approve indigenisation and empowerment arrangements

(1) With effect from the date that the Minister, by notice in a statutory instrument, prescribes what is required to be prescribed for the purposes of section 3(1)(b)(iii), (1)(c)(i), (1)(d) or (e), no transaction referred to in section 3(1)(b), (c), (d) or (e) shall be concluded unless—

(a) notice thereof is given to the Minister within the prescribed time and in the prescribed manner by either or both of the parties to the transaction (in this section called “the notifying party”); and

(b) the Minister—

(i) approves the transaction in writing to the notifying party; or

(ii) does not indicate approval or disapproval of the transaction in writing to the notifying party;

within forty-five days from the date when notification of the transaction is made within the prescribed time and in the prescribed manner as provided in paragraph (a):

Provided if the Minister, at any time before the expiry of the forty-five days referred to in this paragraph, indicates in writing to the notifying party that he or she requires more time to consider the transaction, the Minister shall have a further forty-five days to indicate his or her approval or disapproval of the transaction.

(2) The Minister may, within forty-five days from the date when notification of the transaction is made within the prescribed time and in the prescribed manner as provided in subsection (1) (a), disapprove the transaction in writing to the notifying party, in which event subsection (3) shall apply to such transaction:

Provided that the Minister shall not disapprove of a transaction referred to in subsection (1) except on the grounds that the transaction does not comply with the objectives specified section 3(1)(b), (c), (d) or (e), as the case may be.

(3) Where the Minister indicates his or her disapproval of a transaction in terms of subsection (2), he or she shall have a further ninety days to—

(a) specify in writing to the notifying party what must be done in order for the transaction to comply with the objectives specified section 3(1)(b), (c), (d) or (e), as the case may be; or

(b) introduce to the notifying party any additional or alternative party to the transaction in order for the transaction to comply with the objectives specified section 3(1)(b), (c), (d) or (e), as the case may be

whichever course appears to the Minister to be the most appropriate to the circumstances:

Provided that the Minister shall not require anything to be done under this subsection which will result in the transaction in question being concluded on less favourable terms than those originally notified to him or her under subsection (1)(b).

(4) The Minister shall, in the exercise of his or her powers under this section, have access to all public records relating to business shareholdings and controlling interests, notwithstanding anything to the contrary contained in any other law.

5 Enforcement of notification and approval requirements

(1) In this section—

“licensing authority” means¾

(a) in respect of public service vehicles, the Commissioner of Road Transport referred to in section 3 of the Road Motor Transportation Act, 1997 (Act No. 1 of 1997) or any Assistant Commissioner of Road Transport;

(b) in respect of any financial institution, that is, any body or association licensed or registered under any law relating to asset managers, banks, building societies, unit trust schemes, insurers or pension funds, the licensing or registering authority appointed under that law;

(c) in respect of the trades and businesses required to be licensed in terms of the Shop Licences Act [Chapter 14:17], the licensing authority as defined in that Act;

(d) in respect of the persons who own, conduct or operate designated tourist facilities as defined in the Tourism Act [Chapter 14:20] or who provide or assist in providing any services which are such designated tourist facilities, the licensing authority as defined in that Act;

(e) any other statutory person, body or authority charged with licensing any business or activity;

“non-compliant business” means a business referred to in section 3(1)(b), (c), (d) or (e) in respect of which it is alleged that any transaction was concluded without either or both of the parties to the transaction timeously notifying the Minister in accordance with section 4(1)(a).

(2) Subject to this section and section 18, the Minister may, issue a written order to the licensing authority of any non-compliant business ordering that the licensing authority concerned decline to renew the licence, registration or other authority to operate of the business concerned, or, where the licence, registration or other authority concerned is granted for an indefinite term, ordering that the licence, registration or other authority concerned be terminated no later than six months from the date when the Minister issued the order to the licensing authority concerned.

(3) Before taking any action in terms of subsection (2), the Minister shall notify the non-compliant business in writing of its intention to issue an order in terms of subsection (2), and the reasons for doing so, and—

(a) shall call upon the non-compliant business to show just cause, within such reasonable period as may be specified in the notice, why such order should not be issued; and

(b) if no just cause exists or can be shown as provided in paragraph (a), shall—

(i) require the non-compliant business to do, or not to do, such things as are specified in the notice for the purpose of rectifying or avoiding any contravention of section 4(1)(a); and

(ii) stipulate the period within which any requirement referred to in subparagraph (i) shall be commenced and completed.

(4) If, at the expiry of any period specified in the notice given in terms of subsection (3), and after considering any representations made by the non-compliant business, the Minister is satisfied that he or she must issue an order in terms of subsection (2), the Minister shall notify the non-compliant business in writing accordingly and publish the notice in such manner as the Minister considers appropriate to draw the attention of other persons affected or likely to be affected by it.

(5) If, within thirty days after the Minister has written to the parties in terms of section 3(3) (or such longer period as the Minister may, for good cause, allow), the parties have not complied with any thing the Minister has required them to do under that provision, the Minister may, without further notice to the parties concerned, issue a written order to the licensing authority of the business in question, to decline to renew the licence, registration or other authority in question to operate the business concerned or where the licence, registration or other authority is for an indefinite term, ordering that the licence, registration or other authority concerned be terminated no later than six months from the date when the Minister issued the order.

(6) An order issued by the Minister to a licensing authority in terms of subsection (2) or (5) shall have effect notwithstanding anything to the contrary contained in any law under which the licensing authority operates.

6 Referral to Minister of proposed notifiable transactions in respect of which no counterparties have yet been identified

(1) With effect from the date that the Minister, by notice in a statutory instrument, prescribes what is required to be prescribed for the purposes of section 3(1)(b)(iii), (1)(c)(i), (1)(d) or (e), any person wishing to identify an indigenous person or persons to acquire a controlling interest in his or her business, whether—

(a) directly through the relinquishment of his or her business; or

(b) as the result of the proposed merger or restructuring of the shareholding of two or more related or associated businesses, or the unbundling of a business or demerger of two or more businesses;

may give notice thereof to the Minister within the prescribed time and in the prescribed manner, requesting the assistance of the Minister to identify the indigenous person or persons concerned.

(2) Upon receipt of a notice in terms of subsection (1), the Minister shall endeavour within a reasonable time to identify a suitable indigenous person or persons to acquire a controlling interest in the business concerned.

PART III

Establishment and Functions of the National Indigenisation and Economic Empowerment BOARD

7 Establishment and appointment of the National Indigenisation and Economic Empowerment Board

(1) There shall be a Board to be known as the National Indigenisation and Economic Empowerment Board, consisting of the chief executive officer ex officio and not less than eleven and not more than fifteen members appointed by the Minister after consultations with the President, of whom at least—

(a) one member shall be the Secretary of the Ministry for which the Minister is responsible; and

(b) one member shall represent any organisation which the Minister considers to be representative of women or women’s organisations; and

(c) one member shall represent any organisation which the Minister considers to be representative of youths or youths organisations; and

(d) one member shall any organisation which the Minister considers of disabled persons or disabled persons’ organisations; and

(e) one member shall be a legal practitioner registered as such in terms of the Legal Practitioners Act [Chapter 27:07]; and

(f) two members shall be persons whom the Minister considers to be knowledgeable or experienced in issues of indigenisation and economic empowerment.

(g) three members shall represent Ministries of Government whose portfolios the Minister considers to be the most important for the purpose of advancing indigenisation and economic empowerment;

(2) The Minister shall designate one member to be the chairperson of the Board and another to be the vice-chairperson, and the vice-chairperson shall exercise the functions and powers and perform the duties of the chairperson during any period that the chairperson is unable to act.

(3) The First Schedule applies to the qualifications of members of the Board, their terms and conditions of office, vacation of office, suspension and dismissal, and the procedure to be followed by the Board at its meetings.

8 Functions of Board

The functions of the Board shall be—

(a) to advise the Minister on the Government’s indigenisation and economic empowerment strategies; and

(b) to advise the Minister on appropriate measures for the implementation of the objectives of this Act; and

(d) to oversee compliance with the Charter; and

(e) to perform such other functions as may be imposed or conferred upon the Board under this Act or any other enactment.

9 Chief executive officer and staff of Board

(1) The Board shall appoint, on such terms and conditions as the Board may fix, a person to be the chief executive officer of the Board and such members of staff as will enable the Board to carry out its functions in terms of this Act

Provided that the Minister, with the approval of the Public Service Commission, may assign persons employed in his or her Ministry to act as the chief executive officer and staff of the Board.

(2) Without the authority of the Minister, no person shall be appointed by the Board as chief executive officer and no person shall be qualified to hold office as chief executive officer if he or she would be disqualified in terms of paragraph 1 of the First Schedule had that paragraph applied to him or her.

(3) The appointment of the chief executive officer shall terminate if he or she would be required in terms of paragraph 3 of the First Schedule to vacate his or her office had that paragraph applied to him or her:

Provided that his or her appointment shall not terminate on the ground that he or she has ceased to be a citizen of Zimbabwe or ordinarily resident in Zimbabwe, if the Minister has granted authority under subsection (2).

(4) The chief executive officer shall, subject to the Board’s directions, supervise and manage the Board’s staff, activities, funds and property and perform such other functions on behalf of the Board as the Board may assign to him or her.

(5) Any assignment of functions in terms of subsection (4)—

(a) may be made generally or specially and subject to such conditions, restrictions, reservations and exceptions as the Board may determine;

(b) may be revoked by the Board at any time;

10 Reports of Board

(1) The Board—

(a) shall, as soon as possible after the 31^st December in each year, submit to the Minister an annual report upon matters the Board has dealt with during the previous year;

(b) may at any time submit to the Minister a special report on any matter upon which the Board considers it desirable to report; and

(2) The Minister shall lay before Parliament the annual report submitted to him or her in terms of subsection (1)(a).

11 Minister may give Board directions in national interest

(1) The Minister may give to the Board such policy directions in writing relating to the exercise by it of its functions as they appear to the Minister to be requisite in the national interest.

(2) The Board shall, with all due expedition, comply with any direction given to it in terms of subsection (1).

(3) Where the Board has been given a direction in terms of subsection (1), it shall ensure that the direction and any views it has expressed thereon are set out in its annual report submitted in terms of the Audit and Exchequer Act [Chapter 22:03] and section 10(1)(a).

part iv

National I

indigenisation and Economic empowerment fund

12 Establishment and objects of National Indigenisation and Economic Empowerment Fund

(1) There is hereby established a fund, to be known as the National Indigenisation and Economic Empowerment Fund.

(2) Subject to this Act, the objects of the Fund shall be—

(a) to provide financial assistance to indigenous Zimbabweans for any of the following purposes—

(i) the financing of share acquisitions;

(ii) the warehousing of shares under employee share ownership schemes or trusts; and

(iii) management buy-ins and buy-outs;

(b) to provide finance for business start-ups, rehabilitation and expansion;

(d) to finance capacity-building projects on behalf of indigenous Zimbabweans; and

(e) any other purpose which the Minister considers will promote the economic empowerment of indigenous Zimbabweans.

13 Unit Trust Account of National Indigenisation and Economic Empowerment Fund

(1) Subject to this section, the National Investment Trust of Zimbabwe (hereafter in this section called “the Trust”) established by a Notarial Deed of Trust on ______________ and registered in the Deeds Registry (No. MA635/2000) is, with effect from the transfer date referred to in section 22, revoked and all its assets and liabilities are transferred to a special account of the National Indigenisation and Economic Empowerment Fund called the “Unit Trust Account”.

(2) Notwithstanding subsection (1)—

(a) units held by unit holders or investors in the Trust on or before the fixed date shall, on and after the fixed date, be deemed to be units held by those unit holders or investors in the Unit Trust Account of the Fund;

(b) the provisions of the Notarial Deed of Trust of the National Investment Trust of Zimbabwe (hereafter in this section called “the Trust Deed”), as incorporated in the Second Schedule with such consequential amendments as are required to bring it into compliance with this section, shall continue to apply to existing and future unit holders or investors in the Unit Trust Account of the Fund;

(3) For the purposes of subsection (2)(b)—

(a) references to the “Trust” in the Trust Deed are substituted in the Second Schedule by references to the Unit Trust Account of the Fund;

(b) references to the “Trustees” in the Trust Deed are substituted by references to the Board in the Second Schedule:

(c) references to the “managers” in the Trust Deed shall be construed as references to the managers of individual unit portfolios within the Unit Trust Account of the Fund, except insofar as the functions of any manager are assumed and exercised by the chief executive officer on behalf of the Board.

(3) Subject to paragraph 55 of the Second Schedule, the Minister may, on the recommendation of or after consultation with the Board, amend the Second Schedule by notice in a statutory instrument:

Provided that no such amendment shall impose upon any unit holder any obligation to make any further payment in respect of his unit or to accept any liability in respect thereof.

14 Composition of Fund

The Fund shall consist of—

(a) any moneys that may be payable to the Fund from moneys appropriated for the purpose by Act of Parliament;

(b) any moneys that the Fund may obtain, with the approval of the Minister and the Minister responsible for finance, by way of donations, loans or other financial assistance; and

(d) any moneys that may vest in or accrue to the Fund, whether in terms of this Act or otherwise.

15 Administration of Fund

(1) Subject to this Act, the Fund shall be administered by the Board through the chief executive officer on behalf of and in accordance with any instructions of the Board.

(2) With the approval of the Minister, the Board shall open one or more banking accounts into which all moneys received on behalf of the Fund shall be paid.

(3) Further provisions governing the administration of the Fund are set out in the Third Schedule.

16 National Indigenisation and Economic Empowerment Charter

It shall be a condition of any financial assistance provided through the Fund that the beneficiary shall comply to the best of his or her ability with the framework for ethical and good business conduct contained in the National Indigenisation and Economic Empowerment Charter, as set out in the Fourth Schedule.

part v

LEVIES

17 Imposition of levies

(1) The Minister may, with the approval of the Minister responsible for finance and subject to subsection (3), by statutory instrument, impose one or more levies on any private or public company and any other business in Zimbabwe specified in the statutory instrument.

(2) Subject to this Part, in regard to a levy imposed in terms of subsection (1), the Minister may, by statutory instrument, prescribe–

(a) the persons who shall be responsible for the payment of the levy; and

(b) the persons who shall be responsible for the collection and remittal of the levy; and

(d) the period for which the levy shall be imposed; and

(e) the imposition of interest and additionally , or alternatively, a surcharge if the levy is not paid within the time prescribed; and

(f) the registration of companies and businesses for the purpose of the levy; and

(g) the books and records to be kept and the returns and information to be furnished to the Minister and the Board or any other person for the purpose of the levy.

(3) A statutory instrument may not be made in terms of subsection (1) or (2) unless a draft has been laid before and approved by resolution of Parliament.

(4) All levy payments shall be remitted to the Fund.

18 Failure to pay, collect or remit levies

(1) Any person who, being under an obligation to do so, without lawful excuse, fails or refuses to pay, collect or remit any levy or any interest or surcharge connected therewith shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

(2) The court convicting a person of an offence in terms of subsection (1) may, on the application of the prosecutor, and in addition to any penalty that it may impose, give summary judgment against the convicted person in favour of the Minister, in his or her capacity as trustee of the Fund, for the amount of any levy, interest or surcharge which the person concerned has been convicted of failing or refusing to pay, collect or remit.

part vi

general and transitional

19 Minister may request information

(1) Every company to which the provisions of this Act may apply, shall, on the written request of the Minister, furnish to him or her a copy of the company’s share register or other document recording the shareholdings or similar interests of the members of that company.

(2) Any company and any other business which, without reasonable excuse, refuses, fails, or neglects to comply with the request made in terms of subsection (1) shall be guilty of an offence and liable to a fine not exceeding level five.

20 Appeals

(1) If any person is aggrieved by—

(a) a decision by the Minister to disapprove a transaction in terms of section 4(2); or

(b) an order issued by the Minister in terms of section 5(2), (5) or(6); or

he or she may, within thirty days after being notified of the decision or of the action being taken, appeal to the Administrative Court.

(2) The noting of an appeal in terms of this section shall not, pending the determination of the appeal, suspend the decision, order or other action appealed against unless the Administrative Court directs otherwise.

21 Regulations

(1) The Minister after consultation with the Board may make regulations providing for all matters which by this Act are required or permitted to be prescribed or which, in his or her opinion, are necessary or convenient to be provided for in order to carry out or give effect to this Act.

(2) Regulations made in terms of subsection (1) may provide for offences and penalties which may be imposed for contraventions of the regulations, which penalties shall not exceed a fine of level twelve or imprisonment for a period not exceeding five years or both.

22 Transfer of assets, obligations, etc. of National Investment Trust to Fund

(1) In this section and section 20 ¾

“National Investment Trust” means the National Investment Trust of Zimbabwe referred to in section 13(1);

“transfer date” means the date fixed in terms of subsection (2);

“Unit Trust Account” means the Unit Trust Account of the Fund referred to in section 13(1).

(2) The assets and rights of the National Investment Trust together with any liabilities or obligations attaching to them, shall be transferred to the Unit Trust Account in right of the Fund with effect from such date as the Minister may specify by notice published in the Gazette.

(3) All bonds, hypothecations, deeds, contracts, instruments, documents and working arrangements which subsisted immediately before the relevant transfer date in relation to any asset, right or liability or obligation transferred to the National Investment Trust under this section and to which the National Investment Trust was party shall, on and after that date, be as fully effective and enforceable against or in favour of the Fund as if the Fund had been named therein.

(4) For the avoidance of doubt it is declared that all the rights held by unit holders or investors in the Trust on or before the fixed date shall continue to be held in the Unit Trust Account without diminution after that date by those unit holders or investors.

23 Transfer of employees of National Investment Trust to Board and conditions of service of transferred employees

(1) With effect from the transfer date every person employed by the National Investment Trust immediately before that date shall, with his or her consent, be transferred to the service of the Board on terms not less favourable than those enjoyed by him or her immediately prior to his or her transfer.

(2) Until such time as conditions of service are drawn up by the Board, the terms and conditions of service applicable to employees of the National Investment Trust shall continue to apply to every employee transferred to the Board as if every such person were still in the service of the National Investment Trust.

first schedule (Section 7(3))

provisions applicable to the Board and committees

Paragraph

1. Disqualification for appointment as member.

2. Terms and conditions of office of members.

3. Vacation of office by appointed members of Board.

4. Dismissal of office by members of the Board.

5. Filling of vacancies of Board.

6. Meetings and procedure of Board.

7. Committees of Board.

8. Minutes of proceedings of Board and committees.

9. Validity of decisions and acts of Board and committees.

Disqualification for appointment as member

1.(1) Subject to this Act, a person shall not be qualified for appointment as a member if—

(a) he or she not is a citizen of Zimbabwe or ordinarily resident in Zimbabwe; or

(b) he or she has, in terms of a law in force in any country—

(i) been adjudged or otherwise declared insolvent or bankrupt and has not been rehabilitated or discharged; or

(ii) made an assignment or composition with his or her creditors which has not been rescinded or set aside; or

(c) within the period of five years immediately preceding his or her proposed appointment, he or she has been sentenced in any country by a competent court to a term of imprisonment imposed without the option of a fine, whether or not any portion thereof has been suspended, and has not received a free pardon; or

(d) he or she is a member of Parliament; or

(e) he or she is absent without leave from three consecutive meetings of the Board.

(2) A person shall not be qualified for appointment as a member, nor shall he or she hold office as a member, if he or she is a member of two or more other statutory bodies.

(3) For the purposes of subparagraph (2)—

(a) a person who is appointed to a board, board or other authority which is a statutory body or which is responsible for the administration of the affairs of a statutory body shall be regarded as a member of that statutory body;

(b) “statutory body” means—

(i) any commission established by the Constitution; or

(ii) any body corporate established directly by or under an Act for special purposes specified in that Act, the membership of which consists wholly or mainly of persons appointed by the President, Vice-President, a Minister or any other statutory body or by a Commission established by the Constitution.

Terms and conditions of office of members

2. (1) An member, other than one referred to in section 7(1)(a), shall hold office for such period, not exceeding three years, as the Minister may fix at the time of his or her appointment.

(2) On the expiry of the period for which a member has been appointed, he or she shall continue to hold office until he or she has been re-appointed or his or her successor has been appointed:

Provided that a member shall not continue to hold office in terms of this subsection for more than six months.

(3) A person who ceases to be a member shall be eligible for re-appointment.

(4) Members shall hold office on such conditions as the Minister may fix.

Vacation of office by members

3.(1) An member shall vacate his or her office and his or her office shall become vacant—

(a) one month after the date he gives notice in writing to the Minister of his or her intention to resign his office or after the expiry of such other period of notice as he or she and the Minister may agree; or

(b) on the date he or she begins to serve a sentence of imprisonment, whether or not any portion has been suspended, imposed without the option of a fine—

(i) in Zimbabwe, in respect of an offence; or

(ii) outside Zimbabwe, in respect of conduct which, if committed in Zimbabwe, would have constituted an offence;

(2) The Minister may require an appointed member of the Board to vacate his or her office if the member—

(a) has been guilty of conduct which renders him or her unsuitable to continue to hold office as a member; or

(b) has failed to comply with any condition of his or her office fixed in terms of paragraph 2(4); or

(3) The Minister, on the recommendation of the Board, may require a member of the Board to vacate his or her office if the Minister is satisfied that the member has been absent without the consent of the chairperson from three consecutive meetings of the Board, of which he or she has been given at least seven days’ notice, and that there was no just cause for the member’s absence.

Suspension of members

4. The Minister may suspend from office a member, other than one referred to in section 6(1)(a), against whom criminal proceedings are instituted for an offence involving dishonesty and, whilst that member is so suspended, he or she shall not carry out any duties or be entitled to any remuneration or allowances as a member.

Filling of vacancies on Board

5. On the death of, or the vacation of office by, a member other than one referred to in section 6(1)(a), his or her office shall be filled within three months in accordance with section 6.

Meetings and procedure of Board

6.(1) The Board shall hold its first meeting on a date and place fixed by the Minister, and thereafter shall meet for the dispatch of business and adjourn, close and otherwise regulate its meetings and procedure as it thinks fit:

Provided that the Board shall meet at least once every three months.

(2) The chairperson—

(a) may convene a special meeting of the Board at any time; and

(b) shall convene a special meeting of the Board on the written request of the Minister or not fewer than two members, which meeting shall be convened for a date not sooner than seven days and not later than thirty days after the chairperson’s receipt of the request.

(3) Written notice of a special meeting convened in terms of subparagraph (2) shall be sent to each member not later than forty-eight hours before the meeting and shall specify the business for which the meeting has been convened.

(4) No business shall be discussed at a special meeting convened in terms of subparagraph (2) other than—

(a) such business as may be determined by the chairperson, where he or she convened the meeting in terms of paragraph 2(a); or

(b) the business specified in the request for the meeting, where the chairperson convened the meeting in terms of paragraph 2(b).

(5) The chairperson or, in his or her absence, the vice-chairperson shall preside at all meetings of the Board:

Provided that, if the chairperson and vice-chairperson are both absent from any meeting of the Board, the members present may elect one of their number to preside at that meeting as chairperson.

(6) A majority of members shall form a quorum at any meeting of the Board.

(7) All acts, matters or things, authorised or required to be done by the Board may be decided by a majority vote at any meeting of the Board at which a quorum is present.

Provided that in the event of an equality of votes the chairperson or person presiding at the meeting shall have a casting vote in addition to his or her deliberative vote.

(8) With the Board’s approval, the chairperson of the Board may invite any person to attend a meeting of the Board or a committee, where the chairperson considers that the person has special knowledge or experience in any matter to be considered by the Board or the committee, as the case may be, at that meeting.

(9) A person invited to attend a meeting of the Board or of a committee in terms of subparagraph (8) may take part in the proceedings of the Board or the committee as if he or she were a member thereof, but he or she shall not have a vote on any question before the Board or committee, as the case may be.

(10) Any proposal circulated among all members and agreed to in writing by a majority of them shall have the same effect as a resolution passed at a duly constituted meeting of the members and shall be incorporated into the minutes of the next succeeding meeting of the Board:

Provided that if a member requires that such a proposal be placed before a meeting of the Board, this subparagraph shall not apply to the proposal.

Committees of Board

7.(1) For the better exercise of its functions the Board may establish one or more committees in which the Board may vest its functions as it considers appropriate:

Provided that the vesting of any function in a committee shall not divest the Board of that function, and the Board may amend or rescind any decision of the committee in the exercise of that function.

(2) On the establishment of a committee in terms of subsection (1), the Board—

(a) shall appoint at least one member of the Board as a member of the committee, and that member or one of those members, as the case may be, shall be chairperson of the committee; and

(b) may appoint as members of the committee persons who are not members of the Board and may fix terms and conditions of their appointment.

(3) Meetings of a committee may be convened at any time and at any place by the chairperson of the Board.

(4) If the chairperson of a committee is absent from any meeting of the committee, the members present may elect one of their number to preside at that meeting as chairperson.

(5) A majority of members of a committee shall form a quorum at any meeting of a committee.

(6) Anything authorised or required to be done by a committee may be decided by a majority vote at a meeting of the committee at which a quorum is present.

(7) At all meetings of a committee each member present shall have one vote on each question before the committee:

Provided that in the event of an equality of votes the chairperson or person presiding at the meeting shall have a casting vote in addition to his or her deliberative vote.

(8) Subject to this paragraph, the procedure to be followed at any meeting of a committee shall be as fixed by the Board.

Minutes of proceedings of Board and committees

8.(1) The Board shall cause minutes of all proceedings of and decisions taken at every meeting of the Board and of every committee to be entered in books kept for the purpose.

(2) Any minutes referred to in subparagraph (1) which purport to be signed by the person presiding at the meeting to which the minutes relate or by the person presiding at the next following meeting of the Board or the committee concerned, as the case may be, shall be accepted for all purposes as prima facie evidence of the proceedings and decisions taken at the meeting concerned.

(3) The Board and any committee of the Board shall cause copies of all minutes that have been signed as provided in subparagraph (2) to be sent to the Minister for his or her information.

Validity of decisions and acts of Board and committees

9. No decision or act of the Board or a committee or act that is authorised by the Board or a committee shall be invalid solely because there was a vacancy in the membership of the Board or the committee or because a disqualified person purported to act as a member of the Board or the committee, as the case may be, at the time the decision was taken or the act was done or authorized.

second schedule (Section 13(2)(b)

Rules of the Unit Trust Account of Fund

PART 1

DEFINITIONS

1. In this Schedule, unless inconsistent with the context, the following words shall have the meanings stated below.

1.1 “Accounting date” means in each year the 31^st day of December, or, in the case of the final accounting period, the date on which the moneys required for the distribution account are transferred to the distribution account;

1.2 “Accounting period” means a period commencing from the end of the last accounting period (as the case may require) and ending on an accounting date.

1.3 “The auditors” means a qualified accountant or firm of qualified accountants appointed by the chief executive officer with the approval of the Board;

1.4 “Authorised Investment” means any investment for the time being authorised by law and which the chief executive officer or the managers, with the approval of the Board, may select for the purpose of investment of the deposited property;

1.5 “Certificate” means a certificate issued by the Board to a unit holder in terms of this Schedule;

1.6 “Conversion offer” means any offer to exchange units or sub-units of another trust for units of the Unit Trust Account;

1.7 “Deal note” means the form of receipt which shall be issued by the Managers to the purchasers of units on the purchase of such units and to the sellers of units on the sale of such units;

1.8 “Dealing day” means the day of each week on which Managers deal with applications for units, and on which they will redeem units, being any business day excluding Saturdays;

1.9 “Deposited property” means all the assets for the time being held on deemed to be held in trust in terms of this Schedule excluding any amount for the time being standing to the credit of the distribution account, to be constituted as provided in Part 8.

1.10 “Distribution account” means the distribution account referred to in Clause 50.2; and “distribution statement” means the distribution statement referred to in Clause 52.1

1.11 “Equalisation payment” means ¾

1.11.1 as regards a unit issued by the Board, the sum deemed by the Managers, after consulting the Auditors, to represent amounts included in the issue price of such unit for income of the Unit Trust Account accrued up to the close of business on the grouping date;

1.11.2 as regards a unit surrendered for value and subsequently re-sold, a sum equivalent to the equalisation payment which would relate to a unit [sold] by the Trustees on the same date;

1.12 “Grouping date” means in relation to a unit issued by the Board or to a unit surrendered for value and subsequently resold the last business day of the previous calendar month;

1.13 “Investor” means any person who may buy units in the Unit Trust Account and shall not include a person who is not a citizen of Zimbabwe or a company whether foreign or local;

1.14 “Investment” means any investment of any nature whatever and includes, without derogating from the generality of the foregoing, any share, stock, bond, debenture, debenture stock or other security;

1.15 “Middle market price” shall be ascertained by reference to the Zimbabwe Stock Exchange share prices on the relevant day and shall be:

1.15.1 the sales price where a sales price is stated;

1.15.2 where there is no sales price stated, the average of the buyer and seller prices rounded up to the nearest cent;

1.15.3 where the buyer price only is stated, the buyer price provided that if the price is¾

1.15.3.1 less than 1000 cents per share then 5 cents shall be added to the price;

1.15.3.2 not less than 1000 cents but less 5000 cents per share then 50 cents shall be added to the price;

1.15.3.3 not less than 5000 cents per share then 200 cents shall be added to the price;

1.15.4 where the seller price only is stated, the seller price provided that if the price is¾

1.15.4.1 less than 1000 cents per share then 5 cents shall be added to the price;

1.15.4.2 not less than 1000 cents but less 5000 cents per share then 50 cents shall be subtracted from the price;

1.15.4.3 not less than 5000 cents per share then 200 cents shall be subtracted from the price;

1.15.5 where on the same day the sales price, the seller price or the buyer price changes, the price last quoted on that day shall apply;

1.16 “Minister” means the Minister responsible for the administration of this Act;

[ 1.17 “Public Service” means persons employed in the service as a member of any body corporate established directly by or under an Act of Parliament.]

1.18 “Qualified accountant” means an accountant who is a member of the Zimbabwe Society of Accountants:

1.19 “Registrar” means the Registrar of Collective Investment Schemes;