The urgent chamber application before me was premised on
the allegation and contention that the assets belonging to Air Zimbabwe or Air
Zimbabwe Holdings or any other company hailing from “…,the Air Zimbabwe Stable” had become immune from attachment
and execution by virtue of the Finance [No.2] Act [being Act No.6 of 2012, ...
The urgent chamber application before me was premised on
the allegation and contention that the assets belonging to Air Zimbabwe or Air
Zimbabwe Holdings or any other company hailing from “…,the Air Zimbabwe Stable” had become immune from attachment
and execution by virtue of the Finance [No.2] Act [being Act No.6 of 2012, not
Act No.2 of 2012 as wrongly cited by applicants], as read with the State
Liabilities Act [Chapter 8:14]….,. It was also argued that the applicants both
hailed from the Air Zimbabwe stable; that both were successor companies to the
Air Zimbabwe Corporation; that the Finance [No.2] Act, Act No.6 of 2012, had
been promulgated in December 2012; that following that promulgation Stephen Nhuta
had, in response to the promulgation, caused the release of the attached
assets; that it was therefore surprising that Stephen Nhuta was now apparently
recanting this position by re-instructing the re-attachment of the same
assets on the basis of the same writ and that this was unlawful. It was further
argued that as a matter of fact the attached assets did not belong to Air
Zimbabwe, against which Stephen Nhuta had no judgment, but to Air Zimbabwe
Holdings and that the proof of such ownership was in the interpleader
proceedings.
Incidentally, the only reference to the so-called
interpleader proceedings in the founding papers before me was in paragraph 9.1
of the founding affidavit. It read:
“9.1 Of the 29 vehicles which were
attached, none belonged to 2nd Applicant. The vehicles belonged to
First Applicant and other companies in the Air Zimbabwe stable, and, as a
result, interpleader notices were filed to safeguard the Claimants' interests.
The Interpleader notices are still pending.”
The applicants argued that the wording of the Finance [No.2]
Act, Act No.6 of 2012, particularly the use of the word “any” meant that there was no limit to the number of companies
that could be formed by “…, the shareholder or board of the
National Airline…,” as successor companies to Air Zimbabwe
Corporation under the Air Zimbabwe Corporation [Repeal] Act [No 4 of 1998]….,.
I also dismissed the application for lack of merit.
Section 8[1] of the Finance [No.2] Act, Act No.6 of 2012
which was published under General Notice 613/12 on 28 December 2012 inserted a
new section 9A into the Air Zimbabwe Corporation [Repeal] Act [No 4 of 1998].
The new section reads:
“9A Legal
proceedings against Corporation or successor company
“The State
Liabilities Act [Chapter 8:14] applies
with necessary changes to legal proceedings against the Corporation or any
successor company.”
Section 8[2] of the Finance [No.2] Act, Act No.6 of 2012
then reads as follows:
“(2) 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 section 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.”
In terms of the State Liabilities Act [Chapter 8:14], State
property is immune from attachment and execution. Therefore, by the aforesaid
amendment the same immunity was being extended to the property of the Air
Zimbabwe Corporation or any successor company. By virtue of subsection [3] of
the Finance [No.2] Act, Act No.6 of 2012 that immunity is to last until 1
January 2015.
The crux of the matter before me in the urgent chamber
application was whether it was correct that any
company formed by “…, the Shareholder or Board of the
National Airline,” as it was put to me, would automatically enjoy
the same immunity provided by the amendment above. Furthermore, was Air
Zimbabwe Holdings, not Air Zimbabwe, also such a successor company to the Air
Zimbabwe Corporation as would enjoy the same immunity?
I do not accept that it was the intention of the
legislature to extend such immunity to an indeterminate 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 Air Zimbabwe
Corporation. The words used in the amendment are “…, or any successor company”. The word “company” is used in the singular. I do not accept the
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 Oxford Advanced Learner's Dictionary shows that the
pronoun “any” can be used not only with
uncountable or plural nouns to refer to an amount or number of something
however large or small but also with singular countable nouns to refer to
one of a number of things or of people when it does not matter which one …,..
I am satisfied that given the wording of that amendment
the use of “any” was meant to refer to a singular
countable noun, i.e. “company”.
A reading of the Air Zimbabwe Corporation (Repeal)
Act (No. 4 of 1998)) as a whole militates against the construction
that more than one successor company to the Corporation was envisaged. For
example, in terms of section 5 of the Air Zimbabwe Corporation (Repeal)
Act (No. 4 of 1998)) the Minister is empowered to transfer the
assets and liabilities of Air Zimbabwe Corporation to the successor company. In
terms of the other sections, the successor company inherits the rights and
obligations of Air Zimbabwe Corporation, including contracts of employment in
terms of section 8 of the Air Zimbabwe Corporation (Repeal)
Act (No. 4 of 1998)). If it was meant to refer to more than one
successor company it would mean that any person against whom Air Zimbabwe
Corporation had any cause of action could be faced with an indeterminate number
of suits from an indeterminate number of creditors all claiming to be successor
companies. Likewise, a creditor of the former Air Zimbabwe Corporation could be
placed in the same dilemma of determining the particular successor company that
would have to meet his or her claim.
Such an absurdity was obviously never intended.
The matter does not end there.
The power to declare a successor company to the defunct Air
Zimbabwe Corporation in terms of the Air Zimbabwe Corporation (Repeal)
Act (No. 4 of 1998)) was not given to all and sundry. It was not
given even to the Shareholders or Board of that defunct entity. The power is
that of Government through the Minister of Transport. The Air Zimbabwe Corporation (Repeal) Act (No. 4 of 1998))
defines “successor company” as the company
referred to in section three. Section 3 of the Air Zimbabwe
Corporation (Repeal) Act (No. 4 of 1998)) reads:
“3 Formation of successor company
“Subject to
this section, the Minister shall take steps as are necessary under the
Companies Act [Cap 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.”….,.
The preamble to the Air Zimbabwe Corporation (Repeal)
Act (No. 4 of 1998)) gives the purpose of the Act as being to
provide for the dissolution of the Air Zimbabwe Corporation and the transfer of
its functions, assets, liabilities and staff to a company formed
for the purpose. Plainly, such wording, by itself, does not admit of more than
one company all being successor companies to the defunct Air Zimbabwe
Corporation.
The matter goes further.
The proviso to section 3 of the Air Zimbabwe Corporation (Repeal) Act (No. 4 of 1998))
envisaged that the company that the Minister could nominate or direct as being
the successor company could be one already in existence prior to the Act. Thus,
if the Minister did not want to form a new company he had a choice to nominate
a pre-existing one. Air Zimbabwe was already in existence when the Air Zimbabwe Corporation (Repeal) Act (No. 4 of 1998))
became law. The Form C.R.14 attached to Stephen Nhuta's papers showed that it
was incorporated sometime in 1997. In the judgment by KUDYA J in Jayesh Shah v Air Zimbabwe Corporation HH133-10 it was noted that Air
Zimbabwe was incorporated on 20 November 1997. It was held in that judgment
that Air Zimbabwe was the successor company to the former Air Zimbabwe
Corporation. This the Minister did by means of a legal instrument, namely
General Notice No. 120A/2000.
On the other hand, Air Zimbabwe Holdings appears to have
been formed sometime in 2005 according to the C.R.14 to Stephen Nhuta's papers.
Other than a declaration from the bar by the applicants' counsel that Air
Zimbabwe Holdings was formed by the Minister also as a successor company to the
Air Zimbabwe Corporation nothing was presented before me to this
effect. On the contrary, we have the legislation analysed above and the
judgment of this court aforesaid both militating against such a construction.
In the premises, I rejected the contention that Air
Zimbabwe Holdings was a successor company to the Air Zimbabwe Corporation.
