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RGN 841 of 1972
Companies Winding Up Rules 1972
- Petitions and applications.
- Director’s petition regarding liquidation.
- Action to be taken on receipt of winding-up order.
- Master’s reports.
- Recognition of foreign liquidators.
- Public examination of directors.
- Convening of meetings.
- Notice of meetings.
- Costs of meetings.
- Addresses and notices.
- Chairman of meetings.
- Minutes of meetings.
- Proof of claims.
- Contempt of court.
- Restriction on purchase of goods by liquidator.
- Dealing with assets by liquidator.
- List of contributories: calls.
- Legal costs.
- Filing of depositions.
- Depositions as evidence.
IT is hereby notified that the Chief Justice, in consultation with the Minister of Justice, has, in terms of section 311 of the Companies Act [Chapter 223], made the following rules:—
- Title These rules may be cited as the Companies (Winding Up) Rules 1972.
These rules shall apply to all proceedings in every winding up and every judicial management under the Act.
In these rules, “Assistant Master” means the Assistant Master of the High Court, at Bulawayo.
The forms prescribed in the Schedule shall be used where applicable, and the particulars contained therein are hereby prescribed as the particulars required by the Act and these rules.
5. Petitions and applications
(1) A petition presented under the provisions of sections 180 and 181 of the Act for the winding up of a company shall state, inter alia—
- the capital, object and nature of the company;
- the title of the petitioner to present the petition;
- the circumstances on which he relies for the order;
- if fraud or misconduct on the part of a director or other person is relied on, the facts relative thereto;
- the facts supporting any allegation that it is just and equitable that the company be wound up;
- if the petitioner desires the appointment of a provisional liquidator, the name and address of some suitable person, supported by an allegation that he is willing to serve and is not disqualified for appointment under the provisions of the Act.
- Except where the petition is presented by the company itself, a copy of the petition and the notice of set-down for hearing shall be served upon the company by deliver of such copy at its registered office or to a responsible person at its place of business, or, failing such service, to a director or secretary of the company, or, if the company is in voluntary liquidation, to the liquidator. An affidavit of service shall be filed with the petition.
- Any provisional order granted by the court in terms of section 181 of the Act shall be published by the petitioner in the Gazette and in one or more newspapers, as the court may direct.
- Any person intending to oppose or support the petition on the return day shall give due notice to the petitioner, and serve on him and on the company a copy of any affidavit filed with the Registrar of the court.
- After publication of a provisional order for winding up, a petitioner may not withdraw his petition without the leave of the court, which may be granted on the courts being satisfied that no other person wishes to obtain a final order, and on such terms and conditions as to costs as the court deems just.
6. Director’s petition regarding liquidation
(1) An application to the court by a director, member or creditor in terms of the proviso to subsection (6) of section 225 of the Act shall be by petition which shall set out, inter alia,—
- the name of the company, its share capital and estimated value of assets to be administered;
- the title of the petitioner to present the petition;
- the circumstances on which he relies for an order;
- the facts supporting any allegation that the person nominated by the creditors should not be liquidator or that his own nomination would be in the better interests of creditors or others interested in the winding up; (e) if any irregularity in the holding of the creditors’ meeting is relied on, the facts relative thereto.
(2) A copy of the petition shall be served on the liquidator nominated by the creditors.
7. Action to be taken on receipt of winding-up order
- The Sheriff shall, on receipt of a winding-up order, if the Master so directs, proceed to attach the movable assets of the company, and, in doing so, shall follow the procedure and be entitled to fees applicable to proceedings in insolvency.
- A messenger or deputy sheriff shall transmit to the Master, as soon as a winding-up order comes to his notice, an inventory of property attached by him prior to the proceedings for winding up, and known by him to belong to the company.
- Where a liquidator is in office, the Master shall not direct the Sheriff to attach the property of the company, unless the liquidator so requests, or, for some special reason, he thinks fit.
8. Master’s reports
A report by the Master pursuant to the provisions of section 183 of the Act may be submitted to a judge in chambers, or, if the Master thinks fit, through counsel to the court. The judge in chambers, or the court, as the case may be, may direct in what manner further proceedings shall be conducted or make such other order as is deemed to be just. The like procedure may be applied to any other matter which, in the opinion of the Master, should be brought to the attention of the court.
9. Recognition of foreign liquidators
(1) Where a foreign company has been placed in liquidation elsewhere than in Zimbabwe, the liquidator thereof may apply by petition for an order recognizing his appointment, and declaring that he be entitled to the sole administration of all of the assets of the company in Zimbabwe, both movable and immovable. The petition may be made by the liquidator himself or by his duly authorized agent within Zimbabwe. The petitioner shall set out, inter alia— (a) the name of the company;
- the extent of its share capital, and, if possible, the extent to which such capital is held by residents of Zimbabwe;
- the circumstances leading up to the order of winding up;
- such other facts as would justify the court in granting the order sought.
The petition shall be supported by a balance-sheet or statement prepared as at the date of liquidation, or some convenient date as near as possible thereto, reflecting not only the general position of the company but the extent of the assets and liabilities of the company in Zimbabwe.
(2) At the hearing, the court may grant an order calling upon all persons to show cause why the liquidator should not be granted recognition and the sole administration of assets in Zimbabwe, subject to all or any of the following conditions, that is to say—
- that the liquidator choose domicilium citandi within Zimbabwe, and that he appoint a duly authorized agent within Zimbabwe;
- that he give security, to the satisfaction of the Master, for the due administration of the assets of the company in Zimbabwe, for compliance with the provisions of the order, and for payment of all fees and charges payable under the laws of Zimbabwe;
- that he file with the Master an inventory, supported by affidavit, showing the assets of the company in Zimbabwe and their value;
- that he shall, as soon as possible, publish a notice in the Gazette and such newspapers as the Master shall direct, calling upon all persons in Zimbabwe having claims against the company to lodge them with the agent of the liquidator on the prescribed form within a period stated in the notice, and determined by the Master;
- that he shall recognize the right of all creditors in Zimbabwe to prove their claims against the company, whereupon the admission or rejection of such claims, the liability of the company therefor to the extent of its assets in Zimbabwe and all question of mortgage or preference in respect of such assets shall be regulated by
the laws of Zimbabwe as if the company were being wound up in terms of the Act;
- that he shall render to the Master an account of his administration of the assets in Zimbabwe and a distribution account showing—
- all claims entitled to be ranked preferentially against the proceeds of the local assets and the proposed application of such assets in satisfaction thereof; and
- the balance remaining for distribution among the general body of creditors; and
- the names of all creditors who have proved their claims in Zimbabwe to the satisfaction of the Master, together with the amount of such claims;
- that he shall also furnish the Master with an account and plan of distribution of the general assets of the company, supported by the acquittances of those creditors whose claims have been proved in Zimbabwe, and who have received any dividend in respect of them;
- that he shall pay any expenses incurred by the Master in giving effect to the order; (i) that he shall comply with all the relevant provisions of the Act.
- Where proceedings against the foreign company are pending in Zimbabwe, or are anticipated, the court may order the rule nisi to operate as an interim interdict restraining any person from instituting any action or proceeding further against the company until it has given judgment on the application for a final order.
- The rule nisi shall be published in the Gazette and in such newspapers as the court may direct. In any such publication, the conditions under which the order is granted may be stated in an abbreviated form approved by the Registrar of the court.
- Any person intending to object to the recognition of such liquidator shall give the petitioner notice of his objection, stating the ground thereof, and serve upon the petitioner a copy of any affidavit which he files with the Registrar of the court. Such notice and affidavits shall be served at least forty-eight hours before the return day.
- On the return day, the court may, after hearing any objections, refuse or grant a final order, or may grant a final order subject to further conditions, and may make such order as to costs as it deems just.
10. Public examination of directors
- Where the court has made an order, under section 205 of the Act, directing any person to attend for public examination, notice of the order and of the time and place appointed for the holding of the examination shall be served through the Sheriff.
- The Master shall give public notice of the time and place appointed for the holding of a public examination by advertisement in the Gazette and such newspapers, if any, as the court may direct.
- If any person who has been directed by the court to attend for public examination fails to attend at the time and place appointed for the holding of the same, and no good cause is shown for such failure, and it has been proved, to the satisfaction of the court, that notice of the order and of the time and place so appointed has been duly given to such person, or if before the day appointed for the examination, the court shall be satisfied that such person has absconded, or that there is reason to believe that he is about to abscond with the view of avoiding examination, it shall be lawful for the court, without any further notice, to issue a warrant for the arrest of the person required to attend, or to make such other order as the court may think just.
(1) Meetings of creditors, contributories and members shall be convened—
(a) in the case of meetings to be held in terms of subsection (1) of section 186 of the Act, by the Master; (b) in all other cases, by the liquidator or judicial manager, as the case may be:
Provided that, where a meeting is to be presided over by an official mentioned in subrule (1) of rule 15, that official shall appoint the time and date of the meeting.
(2) Meetings shall in all cases be convened in such place as, in the opinion of the person presiding thereat, is most convenient to the majority of persons likely to attend.
12. Notice of meetings
- Not less than ten days’ notice of the time, place and purpose of any meeting shall be given by advertisement in the Gazette.
- Except in the case of meetings to be held in terms of subsection (1) of section 186 of the Act, notice of meetings shall be sent by post to each contributory or creditor:
Provided always that the proceedings and resolutions of any meetings in respect of which notice is required to be sent by post to each contributory or creditor shall, unless the court otherwise directs, be valid notwithstanding that some creditors or contributories may not have received the notice sent to them.
13. Costs of meetings
- Where, by the Act or these rules, notice of a meeting is required to be sent, whether to creditors or contributories, the costs of summoning the meeting, including all disbursements for printing, stationery, postage, and the hire of room, shall be calculated at the rte of twenty cents for each creditor or contributory to whom notice is required to be sent.
- The costs of any meeting (other than a special meeting) called at the instance of a creditor for proof of debt shall be recoverable from the assets of the company.
- The costs of a special meeting called at the instance of a creditor shall be paid by the person at whose instance it is summoned, who shall, before the meeting is summoned, deposit with the liquidator such sum as may be required by him as security for the payment of such costs.
14. Addresses and notices
- A creditor or contributory may furnish the liquidator with his address or the name and address of some other person to act for him under a properly executed power of attorney.
- Any notices required to be sent under these rules shall thereafter be sent to that address or agent, or, failing such address, to such other address as may be known to the liquidator or recorded in the books of the company or the statement of affairs submitted under the provisions of section 182 of the Act.