(1) REMO INVESTMENT BROKERS (PRIVATE) LIMITED (2) MAHOMED IQBAL MAHMED
(3) REZANA EBRAHIM (4) JOHN MOTSI
SECURITIES COMMISSION OF ZIMBABWE
SUPREME COURT OF ZIMBABWE
GARWE JA, GOWORA JA & PATEL JA
HARARE, MAY 27 2013 & DECEMBER 5, 2014
F Girach with J Samkange, for the appellants
T Mpofu, for the respondent
GOWORA JA: This is an appeal against a judgment of the Administrative Court by which the court dismissed the appeal to that court against a decision of the Securities Commission of Zimbabwe (“the Commission”) cancelling the licences of the first and second appellants, and imposing sanctions upon the third and fourth appellants.
The first appellant Remo Investment Brokers (Pvt) Ltd (“REMO”) is one of the longest established registered securities exchanges within Zimbabwe. The second appellant Mahomed Iqbal Mahmed (“Mahmed”) is a securities dealer and is also the Managing Director of REMO. The third appellant Rezana Ebrahim (“Ebrahim”) is married to Mahmed and is a Compliance Officer for REMO. She and Mahmed are the beneficial owners of REMO. The fourth appellant John Motsi (“Motsi”) is a Registered Securities Dealer.
Following upon turbulence within the securities sector, the Commission suspended REMO from trading for a period of six months. After the suspension of REMO, the Commission instituted investigations through Proctor and Associates who compiled a report. Armed with that report, the Commission charged REMO and Mahmed of contravening certain specified sections of the Securities Exchange Act [Chapter 24:25], (“the Act”).
The appellants were invited to make representations to the charges. Ultimately, the Commission confirmed the convictions and cancelled the licences of REMO and Mahmed for a period of five years after which they could re-apply for registration. Ebrahim was advised by the Commission that she was permanently disapproved as a compliance officer. Motsi was able to retain his dealer’s licence but was advised that he had to practise under a supervising senior broker for a period of one year. Aggrieved by the decisions of the Commission, the appellants collectively launched an appeal with the Administrative Court which dismissed the appeal and confirmed both the conviction and sanctions imposed by the Commission.
The appellants now appeal to this Court on several grounds.
Mr Mpofu on behalf of the Commission took the point in his heads of argument that the grounds of appeal complain against every finding made by the court a quo. The grounds, which number thirteen, have been framed too widely. They are not clear and concise as required by the Rules of this Court. Although the manner in which the grounds have been set out is not in itself fatal to the appeal, it would be neater to deal with the appeal on the basis of the substantive issues for resolution rather than the piece meal approach detailed within the grounds.
A preliminary point raised on appellants’ behalf was that the court a quo had erred in finding that the cancellation of the licences of REMO and Mahmed was effected in terms of s 105 of the Act. In the alternative, it was argued that the court erred in failing to find that the cancellation of the said licences was premature regard being had to the provisions of s 48 as read with s 108 of the Act. It was contended further that the court a quo had erred in any event in failing to find that, contrary to the provisions of s 105(2), the appellants had not been afforded an adequate opportunity to be heard. It was argued that they did not receive a fair hearing. It was therefore contended that on this basis the appeal should succeed.
Before the Administrative Court, the appellants had similarly argued that the cancellation of the licences had been done in breach of the quoted sections. Per contra, the respondent contends that the licences for Remo and Mahmed were cancelled under s 105 of the Act.
The court a quo found that, in terms of s 48 (3), the Commission was not empowered to cancel a licence under s 48 (1) until a period of thirty (30) days allowing for an appeal to the Administrative Court in terms of s 108 would have elapsed. The court, however, found that contrary to the contention of the appellants, the licences were cancelled in terms of s 105 of the Act as opposed to s 48(1). In the circumstances, the court a quo came to the conclusion that there had been no breach of s 48(3) and s 108 on the part of the Commission.
In my view the dispute centres on the interpretation of ss 48, 49 and 105 of the Act. The powers of the Commission to cancel a licence are provided for in s 48 and s 105 of the Act. It was s 105 which the court found to be the applicable section.