John Robertson, a Zimbabwe based econonomist, has circulated an analysis of the Indigenisation and Economic Empowerment Act by Mr Willsmer, a Harare lawyer:
Frequent suggestions have been made that the Indigenisation and Economic Empowerment Act is so poorly drafted that any company challenging its validity in Court would be certain of success. This claim has been countered by arguments that the politically influenced Courts in Zimbabwe could not be relied upon to hand down a decision that would be based entirely on issues of legality or constitutionality.
Mr N M Willsmer, a Harare lawyer, has offered a number of analyses of this Act and has given me permission to forward his latest to you. Many definitional problems seem to have tripped up the legal draftsmen and women, and one is particularly interesting:
The target of the indigenisation regulations is to achieve a transfer of ownership of 51% of all non-indigenous businesses to indigenous Zimbabweans.
But, restated in its most basic terms, a business is defined as a person or a collection of people.
This means that the wording throughout the Act implies that its intention is to gain, for indigenous Zimbabweans, 51% ownership of the people who own the undertakings that generate the products and incomes.
Mr Willsmer identifies a number of other shortcomings that, in more normal circumstances, would cause the judiciary to reject the Act as unenforceable. I have attached his observations in the hopes that they will be of value, or at least of interest to you.
The document (in MS Word format) can be downloaded from our document library here.