Income
Tax Appeal
KUDYA
J:
This appeal seeks to answer the question whether the payment made to
a Community Share Ownership Trust (CSOT) by a holder of a Special
Mining Licence, SML, before 1 January 2013 constituted a deductible
expense in terms of para 4(1)(a) of the Twenty Second Schedule to the
Income Tax Act [Chapter 23:06].
The
Facts
The
parties did not call any evidence but proceeded by way of a statement
of agreed facts to which was attached 5 annexures.
These
annexures comprised the Cession Claims Agreement, dated 25 March 2008
(Annexure 1); the appellant's holding company's Indigenisation
and Economic Empowerment (General) Regulations Indigenisation Plans
and Extent of Indigenisation document dated April 2012 (Annexure 2);
the appellant's holding company's Revised Empowerment Proposal
dated 5 June 2012 (Annexure 3); the letter from the Minister for
Indigenisation approving the Implementation Plan in Annexure 3, dated
7 June 2012 (Annexure 4); and the approval of the Revised
Implementation Plan by the same Minister dated 10 August 2012
(Annexure 5).
In
addition, the parties adopted the contents of the Heads of Agreement
concluded on 1 November 2012 between the Minister of Indigenisation
and the National Indigenisation and Economic Empowerment Fund, on the
one hand, and the appellant and three other related companies, which
were the South Africa registered AP Limited, the appellant's
holding company AM Ltd and S Ltd and the Trust Deed executed by the
Minister of Indigenisation and the appellant's holding company as
Founder 1 and 2, respectively, the appellant and 5 Founding Trustees
on 23 November 2011.
The
Founding Trustees comprised of 3 local chiefs and two nominees of the
appellant.
The
following facts are derived from these documents:
The
appellant is a wholly owned local subsidiary of a locally registered
company, O Ltd which is in turn wholly owned by another local
company, referred to in this judgment as the appellant's holding
company or AM Ltd. AM Ltd is wholly owned by a Dutch company, E BV,
which in turn is a wholly owned subsidiary of a South African
registered and Johannesburg Stock Exchange listed company, AP Ltd1.
These
entities are all members of the worldwide AH Group, which prides
itself as a “natural resources business of international scale.”2
The
appellant is a platinum group metals (PGMs) mining company, which is
in the business of developing and exploiting mining claims in and
exporting PGMs from Zimbabwe3.
It
is also a holder of a Special Mining Lease (SML) issued in March
2008.
At
the special instance and request of the Government of Zimbabwe (GoZ)
represented by the Minister of Mines and Mining Development, the
appellant and a related local company, S Ltd, entered into a cession
of mining claims agreement with the Government of Zimbabwe on 28
March 2008, through which the Government sought to broaden the
participation of indigenous players in the platinum mining industry.
The
cession of claims agreement predated the SML.
The
ceded mining claims were valued at US$142m payable by way of cash,
equity in joint ventures, processing rights, empowerment credits or
any agreed composition of these methods of payment.
On
15 April 2010, AM Ltd submitted its initial indigenisation
implementation plan, which also covered its local subsidiaries, to
the Minister of Indigenisation for approval, in terms of the
prevailing indigenisation legislation.
It
was revised on 5 June 2012 and approved on 7 June 2012. The plan was
further amended and approved on 10 August 2012. The heads of
agreement of 1 November 2012 were concluded after the approval of the
indigenisation implementation plan.
On
30 May 2011, the appellant filed an income tax self-assessment for
the tax year ended 31 December 2011 showing an assessed loss of
US$41,652,5754.
The
total expenses, excluding interest and tax were in the sum of
US$30,254=95, which included the sum of US$10m categorised in the
notes to its financial statements for the year ended 31 December 2011
as “Contribution to Community Share Trust”.5
The
respondent commenced a tax compliance investigation of the appellant
on 12 November 2012 for the period January 2009 to 31 December 2012
which culminated in the issuance of a Manual Notice of Assessment for
the Income Tax year ended 31 December 2011, assessment number 1/5114
on 2 September 2015.
The
appellant was in a tax loss position of US$54,083,639.04.
The
respondent disallowed US$405,852,101.50 from the assessed loss of
US$459,935,739.546
in the self-assessment filed on 30 May 2012.
On
11 November 2015, the appellant belatedly lodged objection with the
respondent on the disallowance of the US$10m only, which effectively
reduced the carried forward tax loss in the same amount in the 2011
tax year.
The
respondent, acting in terms of section 62(2) of the Income Tax Act,
condoned the late objection by letter of 17 November 2015.
On
13 April 2016, the respondent disallowed the objection on two bases:
(i)
The first was that the payment was not made wholly and exclusively
for the purposes of the special mining lease operations but largely
for obtaining approval of the indigenisation implementation plan.
(ii)
The second was that the expenditure was in any event of a capital
nature.
The
appellant was granted leave to appeal out of time by this Court by
order dated 6 July 2016 and duly filed its notice of appeal on 11
July 2016.
The
appellant duly filed its case on 29 August 2016 while the respondent
filed the Commissioner's case on 25 October 2016.
By
letter of 21 October 20167,
appellant's erstwhile legal practitioners, inter alia, indicated
that by that date the heads of agreement had not yet been implemented
nor had the Trust been allocated the envisaged 10% equity in AM Ltd,
as specified in the transaction documents.
At
the first pre-appeal hearing of 17 March 2017, the sole issue
referred for determination on appeal was whether the payment of
US$10m to the Rural District Community Share Ownership Scheme made in
November 2011 was properly claimed as a deduction?
On
22 November 2017, counsel for the parties further agreed to file a
statement of agreed facts by 29 November 2017. The parties undertook
to file their heads of argument by 18 and 31 January 2018,
respectively.
In
November 2011, the appellant paid US$10m to the CSOT and claimed a
deduction of that amount from its tax returns for the 2011 tax year.
The
amount was disallowed by the appellant in both the amended assessment
of 2 September 2015 and the determination to the objection on 13
April 2016.
It
was common ground that in terms of section 3(1)(a) of the
Indigenisation and Empowerment Act [Chapter 14:33] (the
Indigenisation Act) the Government was mandated to compel “every
public company and any other business” with a minimum value of
US$500,000 to dispose of at least 51% of its equity to indigenous
Zimbabweans at a fair market value.
The
appellant contended, on the one hand, that the disbursement was in
part fulfilment of its legal obligation to indigenise in terms of the
Indigenisation Act and was of a revenue nature while the respondent
contended that the appellant did not have any legal obligation to pay
the CSOT and that such payment was of a capital nature.
The
Issue
The
issue referred on appeal on 17 March 2017 was whether the payment of
US$10 million to the CSOT made in 2011 was an allowable deduction.
The
Resolution of the Issue
It
was common ground that the provisions of section 15(2)(ll) allowing
the deduction of contributions made to Community Share Ownership
Trusts was not applicable in the present case as they only came into
force on 1 January 2013.8
The
Contents of Annexure 2 to 5 to the Statement of Agreed Facts
Annexure
2, the original empowerment plan, was compiled on 14 April 2010 by
the appellant's holding company for the indigenisation of the
holding company and all its local subsidiaries.
It
provided the estimated gross and net values of each of its four local
subsidiaries, inclusive of the appellant. The estimated net fair
market value of the four subsidiaries was in the sum of US$480.2m of
which US$25.5m was attributed to the appellant.
The
sum of US$142.8m constituted 51% of the net fair market value of
these four subsidiaries from which the amount attributed to the
appellant would be in the sum of US$13,005,000.
Annexure
2 indicated that the appellant was by virtue of the Cession of Claims
agreement to be regarded as having been indigenised at the rate of
31.3% in April 2010.9
The
document listed amongst AM Ltd's “socially and economically
desirable activities that ought to be given indigenisation credit”
the development of the appellant's mine from 2007 and the
concomitant supply of materials to 363 households for the
construction of blair toilets, drilling, casing and equipping 7
boreholes and training village pump minders, construction of a
shelter at a local clinic, electrification of 3 classroom blocks at a
local secondary school, refurbishment of a local primary school,
donation of an ambulance at the local district hospital and the
donation of six months worth of drugs at three local health centres
at an aggregate cost of R7m.
Other
projects included the provision of national provincial scholarships
to 300 pupils in the country's 10 provinces since 1987,
construction of a US$2m water supply dam for the mine and surrounding
communities, construction of a road and bridge and the donation by
the AH Group of £270,000 for the enrolment of up to 1,000 children
with disabilities in 21 primary schools over a three year period.
An
overview of the original plan, Annexure 2 and the revised plan,
Annexure 3, was captured in Annexure 310.
The
summary highlighted that each plan comprised of “a donation of
US$10 million to the CSOT”.
In
addition, in regards to the original plan, the outstanding Cession of
Claims Agreement financial obligations due from the Government were
rated at 30% of the indigenisation threshold.
The
holding company undertook a 28% equity ownership transaction through
the Notional Vendor Funding (NVF)structure. 10% of this equity would
be allocated to Strategic Equity Partners (SEPs)and the Sovereign
Wealth Fund (SWF) while another 10% would be allocated to the CSOT
and the remaining 8% to the Employee Trust.
The
South African based AP Ltd would hold 72% of the holding company's
equity.
The
chart flow summary showed that the holding company would continue to
hold 100% equity in the appellant.
Apparently,
the original plan was rejected by the Minister of Indigenisation who
requested the holding company to submit a revised plan11.
The
holding company undertook to implement the revised plan in two
phases.
The
first phase involved the allocation of an aggregate of 20% equity
consisting of 10% equity to the CSOT and the Employee Trust,
respectively. The balance of 31% would be allocated to SEPs and the
SWF in the second phase through the Notional Vendor Funding
structure. The remaining 49% would be held by the South African
related company, AP Ltd.
Again,
the chart flow showed that the holding company would own all the
equity of the appellant.
By
letter of 7 June 2012 (Annexure 4) the Minister approved the proposed
empowerment distribution to the CSOT at 10%, Employee Share Trust at
10% and lastly the SWF and SEPs at 31%.
He
did not recognise the “donation of US$10m to the CSOT” as part of
the approved indigenisation implementation plan.
Apparently,
the Minister and the holding company maintained dialogue on the plan,
which culminated in a further approval on 10 August 2012 wherein the
Minster distributed the 31% to the National Indigenisation and
Economic Empowerment Fund (NIEEF) and the SEPs.
He
allocated 21% equity to the NIEEF and 10% to the SEPs.
The
Legislative Requirements for Indigenisation
The
relevant indigenisation legislation at the time the US$10m payment
was made comprised the Indigenisation Act, which was enacted in 2007
and operationalised on 17 April 200812,
the Indigenisation and Economic Empowerment (General) Regulations SI
21/2010 as amended13
and the Minimum Requirements for Indigenisation Implementation Plans
Submitted by Non-Indigenous Businesses in the Mining Sector published
in General Notice 114 of 2011.14
The
provisions of section 3(1)(a) governed the indigenisation of the
appellant.
The
appellant, which fell under the rubric of a “public company or any
other business” was obligated to dispose at the fair market value
51% of its equity to indigenous Zimbabweans.
Mr
Matinenga, for the appellant, in his written heads of argument,
contended that the provisions of section 3(1)(e) of the same Act also
governed the indigenisation of the appellant.
His
submission that the appellant would not have been issued with an
investment licence had it not donated US$10m to the CSOT was
incorrect for two reasons:
(i)
The first was that the provisions of section 3(1)(e) of the
Indigenisation Act as particularised by section 9(2) of the
Indigenisation and Economic Empowerment (General) (Amendment)
Regulations, SI 34/2011 were inapplicable to the appellant because
these provisions applied to the projected or proposed investment in a
prescribed sector of the economy, to which platinum mining was
excluded.
(ii)
The second was the agreed fact that the appellant was an old investor
that had commenced mining operations in 2007, and not a new one.
In
terms of section 5(2) as read with the definition of “non-compliant
business” in section 5(1) of the Indigenisation Act, the Minister
of Indigenisation could, inter alia, direct a licensing authority to
terminate an indefinite licence of any eligible company that failed
to submit a section 3(b)(ii), (c)(i), (d) and (e) provisional
indigenisation implementation plan within the prescribed period.
This
provision would also have been inapplicable to the appellant regard
being had to the fact that there were no apparent sanctions imposed
for infringing section 3(1)(a) of the Indigenisation Act, which, in
my view, would have regulated the conduct of the appellant.
It
was common cause that the appellant's holding company timeously
submitted the first indigenisation implementation plan in April 2010,
well within SI 21/2010 first deadline of 30 June 2010.
The
first amendment to the Regulations, SI 116/2010 introduced CSOTs, in
section 14B, as indigenisation partners.
In
terms of section 14B(3), the dividends and any money accruing to the
Trust was to be applied towards community projects such as the
construction and maintenance of schools, health centres, roads,
dipping tanks, water reticulation and sanitation and gully
reclamation.
The
provisions of section 3(4) of the Indigenisation Act accorded the
Minister the power to prescribe the minimum indigenisation threshold
in each sector by notice in a statutory instrument.
He,
however, did so by General Notice No. 114/2011 and prescribed the
minimum indigenisation threshold value in the mining sector at US$1.
The
General Notice prescribed the actual approval period of 45 days and a
deemed approval of 90 days.
The
indigenising entity was further required to implement the approved
plan within 6 months of the approval date, with a possible extension
thereof of 3 months.
The
appellant's holding company submitted the first plan in April 2010,
which was approved in clause 9.1 and 9.2.1 of the heads of agreement.
This
plan was amended on 5 June 2012 at the request of the Minister and a
revised one subsequently submitted to and approved by him on 7 June
2012.
The
final plan that was approved on 10 August 2012 apportioned the 51% of
the equity of the appellant's holding company by allocating 10% to
the CSOT, 10% to the Employee Share Ownership Trust, 21% to the
National Indigenisation and Empowerment Fund and 10% to Strategic
Equity Partners.
Whose
implementation plan was it?
Mr
Matinenga, on the one hand, contended that the appellant was
obligated by the indigenisation legislation to incur the US$10m
payment made to the CSOT while Mr Magwaliba, for the respondent, made
the contrary contention that as the appellant did not submit any
indigenisation implementation plan to the Minister, the disbursement
in question constituted a donation made outside the indigenisation
legislative requirements and for which it was precluded from claiming
a deduction by the provisions of para 4(1)(a) of the Twenty Second
Schedule to the Income Tax Act.
It
was common ground that the indigenisation implementation plan
belonged to the appellant's holding company and not the appellant.
This
is apparent from the headings and contents of annexures 2 to 5 to the
Statement of Agreed Facts. In Annexure 2 and 3, the holding company
cast itself as the sole Zimbabwean based operating natural resources
company in the AH Group to which the indigenisation legislation
applied. While the definitions of the Group in both the Trust Deed15
and the Heads of Agreement16
incorporated the appellant and sought to project the indigenisation
implementation plan to it.
I
agree with Mr Magwaliba that it was a separate and distinct taxpayer
from its holding company.
It
was for that reason precluded from deducting what would either have
been a loan or a donation to the holding company designed to defray
the purported indigenisation implementation plan expenses of the
holding company. See GC (Pvt) Ltd v Commissioner–General, Zimra
2015 (2) ZLR 116 (H).
In
any event, the computation of the US$142m, which amount was used to
allocate the 51% equity interest to the indigenous partners included
the net asset value of three other local subsidiaries of the holding
company whose combined value far outweighed that of the appellant.
Indeed,
the figures and formula utilised in Annexure 2 to the statement of
agreed facts showed that the appellant's net asset value included
in the US$142m was a mere US$13,005,000.
Again,
the flow charts pertaining to the original and revised empowerment
plans further demonstrated that the appellant would remain a wholly
owned subsidiary of the 51% indigenised holding company.
I,
therefore, agree with the submission made by Mr Magwaliba that the
appellant could not rely on an indigenisation implementation plan
that did not relate to it to claim the deduction in question.
Was
the US$10m payment of a revenue or capital nature?
Initially,
the appellant relied on section 15(2)(a) of the Income Tax Act, the
general deduction formula, in claiming the deduction of the US$10m
disbursement but had correctly gravitated towards para 4(1)(a) of the
Twenty-Second Schedule to the Income Tax by the time of objection.
It
seems to me that in respect of special mining lease operations the
general deduction formula is ousted by the provisions of the
Twenty-Second Schedule by virtue of section 15(2)(ff), which provides
that:
“(2)
The deductions allowed shall be —
(ff)
in respect of special mining lease operations, the allowances and
deductions for which provision is made in the Twenty-Second Schedule
in lieu of the allowances and deductions provided for under the other
paragraphs of this subsection;”
Para
4(1)(a) of the Twenty-Second Schedule to the Income Tax Act provides
that:
“General
deductions allowed in determining taxable income
4(1)
Subject to subsection (1) of section sixteen and paragraph 6, for the
purpose of determining the taxable income of the holder of a special
mining lease for a year of assessment, there shall be deducted from
income attributable to his special mining lease operations in that
year the amount of any —
(a)
expenditure and losses, other than of a capital nature, incurred in
that year wholly and exclusively for the purpose of special mining
lease operations carried out by him; and” (underlining my own for
emphasis)
The
appellant contended that the payment was of a revenue nature while
the respondent contended that it was of a capital nature.
The
distinction between revenue and capital nature has been subjected to
judicial scrutiny and application in such cases as CIR v George
Forest Timber Co Ltd (1924) 1 SATC 20 (A); New State Areas Ltd v
Commissioner for Inland Revenue 1946 AD 610; Commissioner for Inland
Revenue v Genn & Co. (Pvt) Ltd 1955 (3) SA 293 (A); D Bank Ltd v
Zimra 2015 (1) ZLR 176 (H) at 187E and 194B-196B; and DEB (Pvt) Ltd v
Zimra HH664/2019 at p18.
In
the New State Areas Ltd case, supra, at page 620-621 WATERMEYER CJ
distinguished the two in the following manner:
“The
problem which arises when deductions are claimed is therefore,
usually whether the expenditure in question should properly be
regarded as part of the cost of performing the income earning
operations or as part of establishing or adding to the income-earning
plant or machinery.”
The
distinction was espoused in Joubert: the Law of South Africa, First
Reissue Part I at para 240 thus:
“The
Income Tax Act does not define what expenditure constitutes capital
expenditure, perhaps because the revenue or capital nature of
expenditure can be ascertained only by reference to the facts and
circumstances of a particular case. Eventually, it must be
established whether the expenditure in question can be regarded as
part of the cost of performing the income earning operations or as
part of the cost of performing the income earning operations or as
part of the cost of establishing or improving or adding to the income
earning capacity of the business.
Expenditure
will be of a revenue nature only if it is so closely linked to the
taxpayer's income earning operations as to form an integral cost of
these operations. Expenditure will be of a capital nature if it is
linked to the income earning structure of the taxpayer which allows
him to generate income.”
In
DEB (Pvt) Ltd, supra at p18 of the cyclostyled judgment I saw the
distinction as one between enhancing the efficacy of a capital asset
and sweating it to produce income.
In
the present case, the US$10m disbursement was not designed to
establish, improve or add to the income earning capacity nor did it
generate any income for the appellant.
In
my view, in the letter of objection, the appellant's case, and in
both written and oral submissions the appellant effectively averred
that the purpose of making the disbursement was to preserve the
special mining lease operations.
These
are defined in section 2 of the Income Tax Act in the following
manner:
“'special
mining lease operations' means any mining operations, or
exploration operations or development operations as defined in
paragraph 1 of the Twenty-Second Schedule, carried out in or in
relation to a special mining lease area pursuant to the special
mining lease.”
Exploration
operations and development operations are defined, seriatim, in para
1 of the Twenty-Second Schedule:
“'exploration
operations' means any operations carried out in Zimbabwe for or in
connection with exploration for minerals, and includes (a)
geological, geophysical, geochemical, paleontological, aerial,
magnetic, gravity or seismic surveys; and (b) the study of the
feasibility of any special mining lease operations or development
operations to be carried out or of the environmental impact of such
operations.
'development
operations' means operations carried out in Zimbabwe for or in
connection with the development of a special mining lease area, and
includes: (a) the sinking of shafts; and (b) the installation of
machinery, implements, utensils and other articles required for
special mining lease operations; and (c) the construction and
erection of: (i) facilities for the production, treatment, storage,
gathering and conveyance of minerals; and (ii) offices, residential
units, schools, hospitals, nursing homes or clinics for use by
persons employed in or in connection with mining operations and by
their families; and (d) the construction of roads in or to the
special mining lease area;”
The
nail in the coffin of the appellant's argument is delivered by the
definition of “capital expenditure” in the Schedule under
consideration. It is defined as follows:
“'capital
expenditure' means exploration expenditure or development
expenditure or both, as the context requires.”
In
the premises, I agree with Mr Magwaliba that the US10m disbursement
designed as it was to preserve the income earning structure was
expenditure of a capital nature and not of a revenue nature.
Again,
I would have dismissed the appeal on the basis that the disbursement
was of a capital nature.
Was
the payment expenditure or losses incurred in that year wholly and
exclusively for the purpose of the special mining lease operations
carried out by him
The
basis for the appellant's contention that the expenditure was
incurred in that year wholly and exclusively for the purpose of its
special mining lease operations was simply that it was by operation
of law required to pay US$10m to the CSOT for the procurement of an
indigenisation licence.
Despite
the wording upon which the respondent dismissed the objection in the
main, which was to the effect that the dominant purpose for making
the disbursement was to procure compliance with indigenisation
legislation rather than to conduct special mining operations, I agree
with both counsel that the decision reached was actually that the
payment was neither incurred wholly and exclusively for the special
mining lease operations nor in compliance with the mandatory
requirements for indigenisation.
Otherwise
the explicit wording in the main would be self-defeating regard being
had to the fact that the appellant's motivation for complying with
the indigenisation legislation would have been to preserve and
conduct special mining lease operations.
The
main reason which militates against the contention advanced by the
appellant that the payment of the US$10m to the CSOT was by operation
of law is that the payment was, in terms of clause 3.1.2 of the Trust
Deed made as a donation to the Trustees and was to be used by them to
further the 25 trust objects specified in clause 5 of the trust deed.
These
objects mirror the requirements prescribed for such Trusts in section
14B(3) of the Indigenisation and Economic Empowerment (General)
Regulations SI 21/2010, which was introduced by the Indigenisation
and Economic Empowerment (General) (Amendment) Regulations, 2010
(No.2) SI 116/2010.
While
clause 5.3 of the Heads of Agreement recorded that the US$10m
donation was part of the Indigenisation Implementation Plan, it again
prescribed that it was to be used “inter alia, (for) funding
community projects.”
Other
documents such as the revised empowerment proposal of 5 June 2012,
Annexure 3 to the Statement of Agreed Facts, the minutes between the
respondent's investigators and the appellant's public officer of
12 November 2012 and the newspaper article covering the report by the
Minister of Indigenisation to the Parliamentary Committee on
Indigenisation of 3 April 2014 treated the payment as a donation17.
The
common law definition of “a donation” was provided by MARAIS J in
Welch v Commissioner for the South African Revenue Service [2004] 2
All SA 586 at para 26 to be synonymous with “a gratuitous disposal
of property prompted by motives of sheer liberality or disinterested
benevolence”.
The
disbursement was not made for the purposes of buying equity in the
appellant nor did it contribute towards the empowerment credits of
the appellant.
In
terms of clause 5.2 of the Heads of Agreement, the Trust was required
to subscribe, at par value, for the community shares, in the equity
of the appellant. The funding mechanism was to be by way of “notional
vending finance” (NVF) availed by the appellant with a coupon rate
of 10% compounded monthly in arrears repayable by the CSOT through
the forfeiture of future dividends payable during the envisaged 10
year tenure of the (NVF) structure.
The
US$10m disbursement was not made for any consideration and snugly
fits into the common law definition of “a donation”.
In
any event, being an ex gratia payment, a donation by its very nature
cannot be incurred as an expense under the provisions of para 4(1)(a)
of the Twenty Second Schedule to the Income Tax Act.
I
would therefore agree with the contention made by Mr Magwaliba in
para 16.6 of his written heads of argument that:
“The
legal obligation of the appellant or even its holding company was not
to make a donation to a Community Trust. It was to comply with the
indigenisation legislation by disposing 51% of the shareholding to
indigenous partners.”
The
provisions of the Indigenisation Act and its Regulations did not
require the appellant to make any donation in order to be indigenous
compliant.
I
would, for these reasons, have dismissed the appeal.
Costs
I
do not find the grounds of appeal frivolous and would in terms of
section 65(12) of the Income Tax Act make no adverse order of costs
against the appellant. Rather, I will direct each party to bear its
own costs.
Disposition
It
is ordered that:
1.
The appeal be and is hereby is dismissed in its entirety.
2.
The amended assessment issued by the Commissioner on 2 September 2015
be and is hereby confirmed.
3.
Each party shall bear its own costs.
Gill
Godlonton and Gerrans, the appellant's legal practitioners
1.
P13 para 8 of annexure 2 to the Statement of Agreed Facts
2.
P5 para 7 of Annexure 2
3.
Clause 3.2 of heads of agreement and directors report in the 2011
financial statement on p106 and 131 of the Rule11 documents
4.
P125 of Rule 11 documents
5.
P57 Rule 11 documents in the 2011 financial statements issued by the
Board on 30 March 2012
6.
P17-19 of Rule 11 documents
7.
P1-2 of Rule 11 documents
8.
P3-4 of Rule 11 documents and para 19 of the appellant's case and
para 50 and the extract of the 2014 National Budget Statement of the
Minister of Finance of 19 December 2013, Annexure E of respondent's
case
9.
Pp8, 14, 15 and 16 of Annexure 2
10.
P4 of Annexure 3
11.
Bullet 4 on page 2 of Annexure 3
12.
Published on 7 March 2008 and operationalised on 17 April 2008
13.
Published in the Supplementary to the Zimbabwe Government Gazette
Extraordinary of 29 January 2010 and amended by SI 116/2010, SI
34/2011 published in the Supplementary Government Gazettes of 25 June
2010 and 25 March 2011, respectively
14.
Published in Supplementary Zimbabwe Government Gazette of 25 March
2011
15.
Clause 1.1.2 of the Trust Deed
16.
Clauses 4.2 as read with 2.1.4 and 2.1.5 and 1.4 of the Heads of
Agreement
17.
Annexure C1 and C2 pp101-105 of the respondent's case
