ZIMBABWE Law and Practice Contributed by: Norman Chimuka and Tonderai Sena, ChimukaMafunga Commercial Attorneys
allotted, issued or transferred in the following circum- stances: • if the nominee shares are less than 20% of the shares or interests in the company; • if the nominee shares are held by a manager or trustee of a collective investment scheme regis- tered under the Collective Investment Schemes Act [Chapter 24:19]; • if the nominee shares are held by an executor of a deceased estate, a trustee of an insolvent estate or the liquidator of a company in liquidation; • if the nominee shares are held by a curator or guardian of a person under a disability; • if the nominee shares are held by a holder of a licence issued in accordance with Part V of the Securities and Exchange Act [Chapter 24:25]; • if the nominee shares are held by a central securi- ties depository established in accordance with Part IX of the Securities and Exchange Act [Chapter 24:25]; or • if the nominee shares are held by such other per- sons as may be prescribed. In the event that the nominee shares are not lawfully held: • no nominee shall, either personally or by proxy, cast a vote attached to the share or interest; • the nominee or beneficial owner shall not receive a dividend payable on the share or interest; and • the Registrar may serve a category 2 civil penalty order upon the alleged nominee, in which: (a) the remediation clause shall require the nomi- nee to divest himself or herself of the share or interest within a specified period; and (b) it is declared that the failure or refusal of the nominee to divest himself or herself of a share or interest within the specified period will result in every share or interest concerned becoming bona vacantia and vesting in the State, which may thereafter dispose of it. 2.14 Written Resolutions Shareholders of a private company can pass or adopt a written resolution without holding a meeting. A writ- ten resolution must be signed by all the members of the company entitled to attend and vote on such reso-
lution at a general meeting and such a resolution is valid for all purposes as if same had been passed at a general meeting of the company duly convened and held. However, this type of resolution does not apply for the removal of an auditor or a director. 3. Share Issues, Share Transfers and Disclosure of Shareholders’ Interests 3.1 Share Issues Existing shareholders of a company have pre-emptive rights to acquire newly issued shares pro rata in pro- portion to the number of shares already held by such existing shareholders, at a price no less favourable than that offered to other persons. The pre-emptive rights do not extend to options to acquire shares or non-share securities convertible into shares. The pre- emptive rights are generally exercised for a period of three months, unless the company’s articles of asso- ciation provide otherwise. 3.2 Share Transfers The following legal or regulatory restrictions apply to the transfer or disposal of shares: • Under the COBE Act, a company is not permit- ted to register a transfer of shares of the company unless a proper instrument of transfer has been delivered to the company except where the right to any shares in the company has been transmitted by operation of law. • No shares may be transferred to a foreign person in the absence of an exchange control approval issued by the exchange authorities. • No shares may be transferred to a foreign resident in a reserved sector under indigenisation laws unless authorised by the relevant authorities. • Disposal of shares in certain sectors must comply with the sector regulations, for example: (a) in the banking and insurance sector, the new shareholder must pass the fitness and probity tests; and (b) in the telecommunications industry, the con- trolling shareholder must be ordinarily resident in Zimbabwe.
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