HLATSHWAYO JA: This is an appeal against an
ex tempore judgment of the High Court
given on 11 November 2013. Detailed written
reasons for the ex tempore judgment were
availed on 3 April 2014.
At the end of hearing arguments from both parties in this appeal, we
reserved judgment and indicated that judgment would be delivered in due course after
consideration of the issues raised.
The order of the court a quo sought to be impugned reads as follows:
“IT IS
ORDERED THAT:
1.
The third respondent's directive to first and second respondents barring
them from selling and/or registering the shares of Renaissance Securities (Pvt)
Limited (In Liquidation) be and is hereby declared unlawful, void and of no
force.
2.
The third respondent shall pay costs of this application on the scale of
legal practitioner and own client.”
Although the parties had approached the court
below for a provisional order, by the consent of the parties, the above final
order was issued. The factual background to this matter is undisputed and amply captured hereunder.
Renaissance Securities (Pvt)
Ltd (the company) is in liquidation. The
first respondent was appointed liquidator of the company. In the course of executing his duties as a
liquidator, the first respondent instructed the third respondent to sell various
parcels of shares in the company's name. Consequently,
and as recorded in the judgment a quo,
but with references to the parties (in brackets) appropriately modified:
“Between 27 June 2013
and 9 July 2013 the (third respondent) sold shares valued at $308 683-57. The amount was deposited into a trust account
established for that purpose. During the
period between 28 June 2013 and 2 July 2013, the (3rd respondent)
also sold shares to the value of $ 434 167-14. The (third respondent) is yet to tender the purchase
price of the shares to the (first respondent).
On 25 July 2013, the (3rd
respondent) advised the (1st respondent) that the (appellant) had
issued a directive to the effect that the (3rd respondent) stop
selling any or all of the company shares and if it had already sold or
transferred any such shares, to reverse the sales and cancel the registrations. Pursuant to the directive the (third
respondent) has since stopped dealing with the shares and is demanding the
reimbursement of the sum of $308 686-57.” p.2 of cyclostyled judgment.
Aggrieved by the directive stopping the third
respondent from selling the said company shares, the respondent approached the
court a quo on an urgent basis
seeking a declaratur to the effect that
the appellant had no power to interfere with a liquidation process in the
manner it did. The first respondent
averred that the appellant's directive was unlawful as one could only interfere
with the liquidation process in terms of s 222(3) of the Companies Act [Chapter 24:03]. In
essence, s 222(3) of the Companies Act permits a party aggrieved by an act
or decision of the liquidator to apply to the court which court may make any
order it deems fit. The first
respondent's contention focused on this section which according to its
interpretation was the only avenue to interfere with or challenge any decision
of a liquidator.
The directive issued by the appellant was
made in terms of section 4 of the Securities and Exchange Act [Chapter 24:25]. Section 4 of the Securities and Exchange Act mandates
the appellant to inter alia provide
high levels of investor protection.
It was and still is the appellant's
contention that failure to protect investors by allowing the first respondent
to sell shares whose ownership is uncertain would be an abdication of one of its
primary duties in terms of s 4 of the Securities and Exchange Act. It is agreed between the parties that the
shares in question were registered in the name of the company as a nominee
shareholder. According to the appellant,
these shares were owned by beneficial owners who are investors it sought to
protect. According to the first respondent,
he made various efforts to find the beneficial owners of those shares and
no-one claimed them. Subsequently, first respondent drew what he regards as the
only reasonable inference that the shares belonged to the company in
liquidation. The court a quo made a finding in favour of the first
respondent declaring that the appellant's directive to the first and the third
respondents was null and void.
The court a quo in its finding reasoned that any third party seeking to
interfere with the duties of a liquidator regarding assets of a company had to
seek leave of the court. The court referred
to Roman Dutch Law concept of concursus creditorum.
However, the application of the concept to
the facts before it was not adequately explained. The court further reasoned that the appellant
had the onus to prove that the shares in question did not belong to the company
but to a third party. In the court a quo's view it would be unlawful for the appellant to exercise its
powers in terms of the Securities and Exchange Act without ascertaining the
owners of the shares.
Dissatisfied with the
decision a quo the appellant noted
this appeal challenging the decision on the following grounds:
1. The judge of the
court a quo erred in finding that Appellant's powers could only be exercised
through the court, and;
2.
The judge of the court a quo erred in finding that First
respondent had done all he could to identify the owners of the shares in
question, and so had the right to sell the shares for the benefit of the
company in liquidation.
In the light of these
grounds of appeal, the two questions this court is seized with are:
a)
Whether the appellant's powers in terms of Securities
and Exchange Act can be exercised without leave of the court, and
b)
Whether the failure by the appellant to
identify the owners of shares leads to an inference that the shares are owned
by the company. Alternatively, whether the 1st respondent discharged
the onus expected of its office in the identification of the owners of the
shares.
We
shall deal with these questions separately hereunder.
a)
Whether or not the
appellant's powers in terms of Securities and Exchange Act can be exercised
without leave of the court
The appellant strongly avers that in issuing
the directive as it did to the first and third respondents it was acting
pursuant to the Securities and Exchange Act.
To this end the appellant maintains that no leave must be sought in executing
its duties in terms of the Act clothing it with authority. As
submitted by Mr Ochieng, for the
appellant, the appeal raises the question whether a company in liquidation may
escape the exercise of administrative powers by a regulator purely because it
is in liquidation. According to the
appellant a lawful directive of general application cannot be impugned on the
basis of the provisions of the Companies Act requiring prior approval of a
court.
The long title of the Securities and Exchange
Act identifies the following as some of the objectives of the Act: to control
and regulate the marketing of securities and investment in securities and to
regulate and register securities exchanges. Section 4 of the Act outlines the objectives,
functions and powers of Securities and Exchange Commission of Zimbabwe (appellant
in casu). Some of the appellant's objectives are to inter alia, provide high levels of
investor protection; reduce systemic risk, that is to say, a risk that a
failure on the part of one or more registered securities exchanges or licensed
persons to meet their obligations may result in other registered securities
exchanges or licensed persons being unable to meet their respective
obligations, and to promote market integrity and investor confidence. It is
clear that the powers conferred to the appellant by the Act to achieve its
objectives and functions are not made subject to the Companies Act [Chapter 24:03].
The first respondent avers and affirms the
finding a quo that a dispute between
the liquidator and any other person relating to ownership of assets held by the
company in liquidation can only be dealt with in terms of the relevant
provisions of the Companies Act. Section
222(3) of the Companies Act provides as follows:
“(3) Any person aggrieved
by any act or decision of the liquidator may apply to the court after notice of
motion to the liquidator and thereupon the court may make such order as it
thinks.”
The question therefore is whether or not the
appellant is a person contemplated in s 222(3) of the Companies Act. Is the appellant's exercise of powers conferred
to it by the Securities and Exchange Act subject to s 222(3) of the Companies Act?
A plain reading of the s 222(3) of the
Companies Act shows that the “acts or decisions” intended are those of an
individual liquidator who must be notified of the approach to the court. That restricted meaning cannot be extended to
include general regulation without producing absurd results. For example, a regulator who has noticed bad
practices by liquidators across the board would have to seek the leave of the
court citing each and every one of the errant liquidators before institution
corrective measures of general application! The Securities and Exchange Act is
meant to offer independent security to investors which duty cannot be properly
discharged if one needs to first seek leave before engaging in acts that secure
investments of investors generally.
The directive in question was issued to all
securities dealing firms “instructing them not to carry out disposal
instructions for firms that are either on suspension, are under liquidation, or
had their licences cancelled, without obtaining prior approval from it”. The directive is clearly of general application. It matters not that it might have been
prompted by a singular instance of perceived potential market risk. Indeed, many pieces of legislation or
regulation come about as responses to singular instances with a potential for
systemic impact. By contrast, see CW v Commissioner of Taxes 1988 (2) ZLR
27 (HC) where a provision was so particularised, viz, an exemption from capital gains tax extended only to “those
who did not contest” payments for the compulsory acquisition of their shares,
that it was held unconstitutional “as it effectively penalized persons who
sought to have their constitutional rights tested in the courts”.
In casu, the appellant acted within its mandate of regulating trading
and dealing in securities, supervising and regulating persons carrying on
licensed activities and issuing notices and guidelines for any purpose that
might facilitate the realization of its objectives and the fulfilment of its
functions. It is difficult how the
appellant can be said to have acted arbitrarily and unlawfully as submitted by Mr
Madhuku, who alleges that:
“1. The directive was meant to deal specifically with one
company in liquidation but pretended to
be a general directive.” However, I have
already noted that a regulation may be prompted by a singular event but that
would not detract from its lawfulness as long as it is of general
applicability. The terms of the
regulation cover more than just the first respondent.
2. The
directive does not appear to have been in writing.” It is regrettable that a
copy of the directive was not made part of the record, but the terms thereof
appear to be common cause and the substance quoted above was actually taken
from 1st respondent's own heads of argument.
3. The directive was not communicated to
affected persons by the appellant itself.
In casu, the liquidator only
heard about it from the second and third respondents”. The argument is not fully developed as to why
the first respondent was entitled to individual and direct communication of the
directive and how the failure to do so renders the directive arbitrary and
unlawful. Equally undeveloped is the
submission that “it is not clear which organ of the appellant issued the
directive”.
4.
The appellant proceeded on the basis of a distinction between a 'nominee
shareholder' and an 'owner' and assumed that it had powers to order a nominee
shareholder to transfer the relevant shares to the 'owner'” However, in my
view, this objection has no relevance to the lawfulness of the general
regulation but may be raised when and if the appellant acts in terms thereof
when the transactions are referred to it.
Accordingly, I have come to the conclusion
that the directive was neither arbitrary nor unlawful and that the court below
erred in holding otherwise and failing to make the necessary distinction
between general regulation, on the one hand, and particular disputations pertaining
to a given liquidation, on the other. The former does not require the prior leave of
a court for its proper exercise. The
latter does. Therefore, the appellant
was not under any obligation to first seek leave of the court before issuing
out the above-quoted general directive which affected the first and third
respondents the way it did.
b) Whether or not failing to identify the owner
of shares leads to the inference that the shares are owned by the company. Alternatively,
whether or not the 1st respondent discharged the onus expected of its office in
the identification of the owners of the shares.
This question is really a
red herring when regard is had to the fact that what is at issue is the
lawfulness of the directive, or, as already noted, the question can only
properly arise upon the implementation of the regulations, i.e., when and if
the appellant acts in terms thereof when the transactions are referred to
it. The substance of the question is
couched in the following terms a quo:
“…there is a
disagreement between the (first respondent) and the (appellant) regarding the
ownership of the shares in issue. The
(first respondent) contends that the shares belong to the company as it is the
registered nominee. He made various
efforts to find beneficial owners, if any, of those shares and no one claimed
them. This is confirmed by the
respondent. He then concluded that they
belong to the company. The (appellant)
contends that the shares were registered in the name of the company as a
nominee shareholder but were owned by beneficial shareholders.”
The learned judge of the court below, then concludes:
“The onus is on the
(appellant) to prove that the shares do not belong to the company but to a
third party. Before doing that, it has
no basis for challenging the company's ownership of the shares in question. It would be clearly unlawful for the
(applicant) to exercise its powers in terms of the Act without ascertaining the
owners of the shares. Such exercise of
power would be arbitrary and would undermine the rights of the owner, which is
the company in this case, unless proven otherwise”.
It appears to me, however, that there has
been an unnecessary conflation of the issue of the lawfulness of the directive
and the question of the disputed ownership of the shares. Although the directive was motivated by the
disposal of what was perceived as 'nominee shares', the terms of the directive
do not dispose of the issue of the nature of the shares. It simply requires that any disposal of
shares by the identified entities, viz.
“firms that are either on suspension, are under liquidation, or had their
licences cancelled”, be referred to it for its prior approval. It would be in the process of such approval
or challenges to non-approval that the questions of onus would arise.
It is common cause that the company, Renaissance
Securities (Pvt) Ltd (In Liquidation), was the nominee shareholder of the
shares in question. The court a quo also
found as much. A nominee shareholder holds shares for the
benefit and on behalf of another person.
A nominee shareholder is therefore not the true owner of the
shares. The remarks made in the case of Oakland Nominees (Pty) Ltd v Gelria Mining
& Investment Compan y (Pty) Ltd 1971 1 SA 441 (A) at 456F are apposite.
The court had this to say:
“The nominee does not
have the authority to transfer the shares he holds; for such authority he must
refer to his principal, the beneficial owner. Where a nominee has stolen or
misappropriated shares registered in his name and transferred them without
authority of the beneficial owner, our courts have permitted the beneficial
owner to vindicate the shares from a bona
fide third party who purchased the shares from the nominee.”
HS Cilliers, M L Benade et al Corporate Law 2 ed at p 237 make reference to the Oakland case with approval. It is
therefore clear that a nominee shareholder holds shares on behalf of the
beneficial owner who is the person who is the real, de-jure owner of the shares, and entitled to all gains, profits and
benefits accruing through such shares. It being common cause that shares in
question were in nominee accounts, it follows therefore that in acting to put
in place measures to ensure that such shares whose ownership is disputed are
only disposed of with its approval, the appellant did not exercise its powers
arbitrarily.
Disposition
In the light of
the foregoing, I am satisfied that the appeal has merit. The appellant need not
first obtain leave before executing its duties in terms of the empowering Act. The costs ordinarily follow the outcome and
nothing has been submitted to merit a departure from this rule.
It is hereby ordered that:
1. The appeal is allowed with
costs.
2. The Judgment of the Court a quo is set aside and substituted with
the following:
“The application is dismissed with costs”.
GWAUNZA JA: I agree
MAVANGIRA AJA: I agree
Coghlan,
Welsh & Guest Inc Stumbles & Rowe, appellant's legal practitioners
Mundia &Mudhara, respondent's legal practitioner
