The second and third grounds of
appeal raise the issue whether Air Zimbabwe Holdings is a successor company of
Air Zimbabwe Corporation as contemplated in section 9A of the Air Zimbabwe
Corporation (Repeal) Act (No.4 of 1998) (“the Repeal Act”). If it is, then it
would follow that the attachment of its property by ...
The second and third grounds of
appeal raise the issue whether Air Zimbabwe Holdings is a successor company of
Air Zimbabwe Corporation as contemplated in section 9A of the Air Zimbabwe
Corporation (Repeal) Act (No.4 of 1998) (“the Repeal Act”). If it is, then it
would follow that the attachment of its property by the Deputy Sheriff was
illegal.
It was the appellants' contention
before this Court, as before the court a
quo, that the word any was meant to convey the
meaning that any company formed by the shareholder or Board of the national airline
would automatically enjoy the same immunity provided by the amendment and that,
in the premises, Air Zimbabwe Holdings was such a successor company as would
enjoy the immunity. The learned Judge rejected this contention. At page 6
of the cyclostyled judgment he said:
“I do not accept that it was the
intention of the legislature to extend such immunity to an in-determinate
number of companies some shareholders or Board somewhere could think of
floating. I do not see the provisions of the amending section aforesaid as
granting the power to anybody, let alone some shareholder or Board of Directors
somewhere, to create a successor company, let alone several of them, to the
defunct Corporation. The words used in the amendment are '…,or
any successor company.'
The word 'company' is used in the singular. I do not accept applicants'
argument that the use of the pronoun 'any'
before the noun 'company'
transformed the word 'company' from
the singular to 'companies' in the
plural. A reading of the whole amendment leaves me in no doubt that it was
intended to refer to one successor company. If it was meant to refer to more
than one company, the legislature could have easily used plurals so that that
portion of the amendment would have read '…,or all successor companies',
or '…,or any of the
successor companies'.”…,.
The correctness of the learned
Judge's ruling becomes evident when the legislative history is considered.
The Air Zimbabwe Corporation
(Repeal) Act (No. 4 of 1998) was brought into operation on
May 8 1998. Its purpose, as set out in the preamble, was 'to
provide for the dissolution of Air Zimbabwe Corporation and the transfer of its
functions, assets, liabilities and staff to a company formed for the purpose;
to provide for the repeal of the Air Zimbabwe Corporation Act [Chapter 13:02];
and to provide for matters connected with or incidental to the foregoing'…..,.
Section 3 of the Air Zimbabwe
Corporation (Repeal) Act (No. 4 of 1998) provided:
“3. Formation of a successor company
Subject to this section, the
Minister shall take such steps as are necessary under the Companies Act [Chapter 24:03] to secure the
formation of a company limited by shares, which shall be the
successor company to the Corporation for the purposes of this Act:
Provided that, if such a company
has been incorporated for the purpose before the date of commencement of this
Act, the Minister may, by notice to the Corporation, direct that that
company shall be the successor company to the Corporation for the
purposes of this Act.”…,.
Section 4 of the Air Zimbabwe
Corporation (Repeal) Act (No.4 of 1998) made provision for the shareholding of
the successor company and section 5 for the transfer of assets and liabilities
of the Corporation to the successor company.
The company nominated by the
Minister, in terms of section 3 of the Air Zimbabwe Corporation (Repeal) Act
(No. 4 of 1998), was Air Zimbabwe (Private) Limited. See Jayesh Shah v Air Zimbabwe Corporation HH133-10 where KUDYA J
remarked:
“Section
3 of the Repeal Act mandated the Minister of Transport and Energy to secure the
formation of a company limited by shares in terms of the Companies Act [Cap 24:03] to succeed the Corporation. If such a
company was in existence before the commencement of the Act, the Minster was
empowered to notify the Corporation and direct the company to become the successor
to the Corporation. The company he nominated as the successor company, Air
Zimbabwe (Private) Limited, was already in existence by the time the Repeal Act
was published. It had been incorporated on 20 November 1997.”
On 28 December 2012, the Finance Act
amended the Repeal Act by inserting a new section 9A. Section 8 of the
Finance Act provided:
“8 New section inserted in Act
No.4 of 1998
1. The Air Zimbabwe Corporation
(Repeal) Act (No.4 of 1998) is amended by the insertion of the following
section after s 9-
'9A Legal proceedings against
Corporation or Successor Company
The State Liabilities Act [Chapter 8:14] applies with necessary
changes to all legal proceedings against the Corporation or any successor
company.'
1. Subject to subsection (3), the
amendment effected by subsection (1) applies to all legal proceedings against
the Corporation or successor company (as those terms are defined in s 2 of the
Air Zimbabwe Corporation (Repeal) Act (No.4 of 1998)), that were commenced or
completed before the date of commencement of this Act.”
The term 'successor company' was
defined, in section 2 of the Air Zimbabwe Corporation (Repeal) Act (No. 4 of
1998), as follows:-
'“Successor company” means the
company referred to in section three.'”
It admits of no doubt, therefore,
that the legislature clearly had in mind one successor company. It is also
clear that had the appellants' contention to the contrary been correct, the
legislature would have expressed itself in words which lend themselves clearly
and unambiguously to the meaning contended for by the appellants. As submitted
by counsel for the respondents, by way of illustration, the Air Zimbabwe
Corporation was only one of the many companies which were
unbundled. Similar provisions were made in legislation repealing the
Electricity Act. For example section 68 of the Electricity Act [Chapter 13:19] provides:
“68 Formation of successor companies
(1) The Minister shall, not later
than six months after the fixed date, take such steps as are necessary under the
Companies Act [Chapter 24:03]
to secure the formation of one or more of the following companies limited by
shares, which shall be the successor company or successor companies to the
Authority -
(a) A company to take over the electricity generation plants of
the Authority;
(b) A company to take over the transmission system of the
Authority;
(c) A company to take over from the authority the distribution
and supply of electricity;
(d) Such other companies as the Minister may approve;
(e) A company to hold the shares of the State in the companies
referred to in paragraphs (a)
to (d).”
Clearly, then, the learned Judge's finding that
Air Zimbabwe Holdings is not the successor company referred to in section 9A of
the Air Zimbabwe Corporation (Repeal) Act (No. 4 of 1998) is unassailable. It
follows, therefore, that the property of Air Zimbabwe Holdings is not protected
from execution by the statutory provision.
