{ "id": "zw-2018-4", "type": "statute", "title": "Public Entities Corporate Governance Act, 2018", "title_en": "Public Entities Corporate Governance Act, 2018", "short_name": "zw-2018-4", "status": "in_force", "issued_date": "2018-01-01", "in_force_date": "2018-01-01", "url": "https://zimlii.org/akn/zw/act/2018/4/eng@2018-05-11", "provisions": [ { "provision_ref": "s1", "chapter": "Part I", "section": "1", "title": "Short title and date of commencement", "content": "1. Short title and date of commencement (1) This Act may be cited as the Public Entities Corporate Governance Act [Chapter 10:31] . (2) This Act shall come into operation on a date to be fixed by the President by statutory instrument." }, { "provision_ref": "s2", "chapter": "Part I", "section": "2", "title": "Interpretation", "content": "2. Interpretation (1) In this Act— \" annual general meeting \", in relation to a public entity , means an annual meeting of the stakeholders of the entity referred to in section 33 (3); \" associate \", in relation to a person, has the meaning given to it by subsections (5) , (6) and (7) ; \" board \", in relation to a public entity , means the members of the governing body of the entity, by whatever name called, holding positions comparable to those of the directors of a company; \" board charter \" is the document which, in addition to outlining the mission and values of the public entity for which a board is responsible, sets forth how board members will discharge their duties and the standards of conduct to which they will be held in that capacity; \" board member representing minority interests \", in relation to a company or other entity which is government-controlled but in which one or more other persons have interests, means a member of the entity's board representing those other persons; \" chief executive officer \", in relation to a public entity , means the person who, either alone or jointly with one or more other persons, is responsible under the direct authority of the entity's board for the conduct of the entity's activities; \" code of ethics \", in relation to a public entity , is the document outlining the mission and values of the public entity , how employees of the entity are supposed to discharge their duties and resolve problems consistently with the entity's values, and the standards of conduct to which employees will be held towards each other and the public in their capacity as employees; \" constitutional Commission \" means a Commission established by the Constitution; \" enabling instrument \", with reference to any public entity , means the instrument (whether or not embodied in a single document) that establishes the entity and governs its functions, powers and procedure, and with reference to— (a) a constitutional Commission , includes the Constitution and any enactment governing the Commission's functions and procedure; (b) a statutory body other than a constitutional Commission , means the enactment by or under which that body is established; (c) a company, means the memorandum and articles of association or other foundational document establishing the company that is filed with the Companies Registry in accordance with Companies Act [Chapter 24:03] ; (d) an entity established under an agreement for a partnership or joint venture between the State and any other person, which entity is declared in terms of subsection (2) to be a public entity , means the agreement establishing that entity; (e) an entity declared in terms of subsection (2) to be a public entity other than one described in the foregoing paragraphs, means the operative, constitutive or foundational document of that entity; \" executive member \", means a member of the board who is employed by the entity in a managerial or teclmical capacity; \" fixed date \" means the date fixed in terms of section 1 (2) as the date of commencement of this Act; \" Good Corporate Governance Code \" means the National Code on Corporate Governance set forth in the First Schedule; \" head of the line Ministry \" means the Secretary of the line Ministry; \" head of the Unit \" means the head of the Unit referred to in section 5 (2); \" independent member \", in relation to the board of a public entity , means a board member who does not have a pecuniary or material relationship with the entity or an associated person of the entity; \" line Minister \", in relation to— (a) a constitutional Commission , means the Minister or Vice-President responsible for the administration of the Act setting out the Commission's functions and additionally, or alternatively, its procedures; (b) a statutory body , means the Minister or Vice-President responsible for the administration of the Act governing the establishment of the body; (c) a public entity other than a constitutional Commission or a statutory body — (i) means the Minister or Vice-President who on behalf of the State holds the shares in or otherwise exercises control over the entity; or (ii) where a public officer other than a Minister or Vice-President holds on behalf of the State the shares in or otherwise exercises control over the entity, means, the Minister or Vice-President responsible for the administration of the enabling instrument under which the public officer exercises his or her functions; \" Minister \" means the Minister or Vice-President to whom the President may, from time to time, assign the administration of this Act; \" near relative \", in relation to a member of a board of a public entity or senior staff member of a public entity , means the member's spouse, child, parent, brother or sister; \" non-executive member \" means a member of the board who does not hold a salaried office in the entity, whether or not he or she is an independent member ; \" performance contract \" means a performance contract entered into in terms of Part V with a board member of a public entity or with a senior staff member of such an entity; \" public commercial entity \" means a company or other commercial entity which is owned or controlled by the State or by a person on behalf of the State; \" public entity \" means an entity whose operations or activities are substantially controlled by the State or by a person on behalf of the State, whether through ownership of a majority of shares in the entity or otherwise, and includes— (a) a statutory body ; and (b) a public commercial entity ; and (c) an entity established under an agreement for a partnership or joint venture between the State and any other person, which entity declared in terms of subsection (2) to be a public entity ; and (d) any subsidiary of an entity referred to in paragraph (a) , (b) or (c) ; \" regulatory entity \" means a public entity established to regulate or supervise a particular area of activity in the public interest; \" Secretary \" means the Secretary of the Ministry, or head of the Department or Office, as the case may be, for which the Minister is responsible; \" senior staff member \", in relation to a public entity , means the entity's chief executive officer and such other members of its staff as may be prescribed or as may be specified by the Unit by written notice to the entity concerned; \" statutory body \" means— (a) a constitutional Commission ; or (b) a— (i) body corporate established directly by or under an Act for special purposes specified in that Act; or (ii) board , committee or similar entity which is established directly by an Act for special purposes specified in that Act; whose members consist wholly or mainly of persons appointed by the President, a Vice-President, a Minister , a Deputy Minister , another statutory body or by a constitutional Commission; \" strategic plan \" means a strategic plan of a public entity drawn up in terms of section 22 ; \" Unit \" means the Corporate Governance Unit referred to in section 5 (1). (2) The Minister may, at the request of or in consultation with the line Minister concerned, by notice in the Gazette , specify any entity established under an agreement for a partnership or joint venture between the State and any other person to be a public entity for the purpose of this Act. (3) Where a senior staff member of a public entity is not appointed by the board of the entity, any reference in this Act to the board in regard to the staff member's appointment, discharge or conditions of service shall be construed as a reference to the person or body that appoints the staff member. (4) Where this Act requires any document to be kept available for inspection at— (a) the office of a line Ministry, a public entity or any other entity, the document shall be kept at the entity's head office and any provincial office and at any of the entity's other offices where members of the public might reasonably expect to find the document; (b) the office of the Unit , " }, { "provision_ref": "s3", "chapter": "Part I", "section": "3", "title": "Application of Act", "content": "3. Application of Act (1) Subject to subsection (2) , this Act shall apply to public entities notwithstanding anything to the contrary in their enabling instruments. (2) This Act shall not apply to Ministries and departments of the Government." }, { "provision_ref": "s4", "chapter": "Part I", "section": "4", "title": "Act not to affect composition or independence of constitutional Commissions", "content": "4. Act not to affect composition or independence of constitutional Commissions This Act shall not be construed so as to— (a) affect the composition of any constitutional Commission or the appointment of members to or the dismissal of members from such a Commission; or (b) compromise the independence conferred by the Constitution on any constitutional Commission or other body. Part II – Corporate Governance Unit" }, { "provision_ref": "s5", "chapter": "Part II", "section": "5", "title": "Corporate Governance Unit", "content": "5. Corporate Governance Unit (1) The Corporate Governance Unit that was established in accordance with the law relating to the Civil Service as a department within the Office of the President and Cabinet shall continue in existence subject to this Act. (2) The Unit shall be headed by a person of the grade of Permanent Secretary and shall consist of such other members of staff as may be necessary for the performance of its functions, whose offices shall be public offices and form part of the Civil Service." }, { "provision_ref": "s6", "chapter": "Part II", "section": "6", "title": "Functions of Unit", "content": "6. Functions of Unit (1) The functions of the Unit shall be— (a) to provide an advisory and centralised support mechanism for line Ministries to ensure strict compliance by all public entities with the applicable provisions of this Act; and (b) to advise line Ministries with regard to the regular evaluation of the performance of public entities and their boards and employees; and (c) to advise line Ministries with regard to the drawing up of performance contracts— (i) between the line Ministries and the boards of all public entities under their purview; and (ii) between boards of all public entities and their chief executive officers and other senior members of management; and (d) to oversee the discharge by line Ministries of their responsibility to monitor compliance by boards and senior staff members with the performance contracts referred to in paragraph (c) ; and (e) to establish and maintain up to date a comprehensive directory or database accessible to all line Ministers and boards that will enable them to identify suitably qualified candidates for appointment to boards of public entities; and (f) to advise on the provision by line Ministries of programmes for the professional development of board members and senior staff members of all public entities under their purview, including board induction programmes and corporate governance training for board members, chief executive officers and other senior staff members. (2) In the exercise of its functions, the Unit may differentiate between public entities according to whether they are— (a) regulatory entities; or (b) commercial entities; or (c) non-commercial entities; or or on any other basis determined by the Unit ." }, { "provision_ref": "s7", "chapter": "Part II", "section": "7", "title": "Functions of head of Unit", "content": "7. Functions of head of Unit (1) Subject to this Act and any directions given to him or her by the Minister through the Secretary , the head of the Unit shall be responsible for directing, managing and controlling the activities of the Unit and its staff, and ensuring that the Unit carries out, efficiently and effectively, its functions under this Act. (2) With the approval of the Secretary , the head of the Unit may delegate to any member of the Unit 's staff any function conferred or imposed on the head by this Act." }, { "provision_ref": "s8", "chapter": "Part II", "section": "8", "title": "Head of Unit may engage consultants", "content": "8. Head of Unit may engage consultants With the approval of the Secretary , the head of the Unit may engage or retain the services of such professionals, consultants and experts as may be necessary for the proper and effective exercise of the Unit 's functions." }, { "provision_ref": "s9", "chapter": "Part II", "section": "9", "title": "Minister may give Unit policy directions", "content": "9. Minister may give Unit policy directions The Minister may, through the Office of the Chief Secretary to the President and Cabinet, give the head of the Unit such general directions relating to the policy the Unit is to observe in the exercise of its functions under this Act as the Minister considers to be necessary in the national interest." }, { "provision_ref": "s10", "chapter": "Part II", "section": "10", "title": "Annual reports of Unit", "content": "10. Annual reports of Unit (1) The head of the Unit shall, not later than the 1st October in each year, submit to the Minister, through the Office of the Chief Secretary to the President and Cabinet, a report on the Unit 's activities during the previous calendar year, and the report may, after is submitted to the Minister and with the leave of the Minister, also be kept available in electronic form for inspection by members of the public on the website of the Unit . (2) If in the course of a year the Unit has become aware of a contravention of this Act (and in particular of any principle of good corporate governance embodied in the First and Second Schedules), or of a performance contract , and the contravention has not been rectified by the date of completion and delivery of the Unit 's annual report, the head of the Unit shall note the contravention in the report (conversely, if the contravention is rectified before such date the report must note the rectification accordingly). (3) The Minister shall lay a copy of every report submitted to him or her in terms of subsection (1) before the National Assembly on one of the thirty days on which the Assembly next sits after he or she received it. Part III – Appointment, tenure and conditions of service of boards of public entities" }, { "provision_ref": "s11", "chapter": "Part III", "section": "11", "title": "Appointment of boards of public entities", "content": "11. Appointment of boards of public entities (1) Whenever a line Minister appoints a member of the board of a public entity , that Minister shall comply with this section as well as the requirements of the entity's enabling instrument: Provided that this section shall prevail over the enabling instrument to the extent of any inconsistency. (2) No person shall be appointed as a member of the board of a public entity for a term longer than four years, and the appointment may be renewed for only one further such term. (3) No person shall be re-appointed to a board if he or she has already served on that board for one or more periods, whether consecutive or not, amounting in the aggregate to eight years. (4) A person shall not be appointed to the board of a public entity if he or she is a member of two other such boards: Provided that for the purposes of this subsection, a person who is a member of the boards— (a) a public entity that owns or controls another such entity; and (b) the public entity that is owned or controlled by the entity referred to in paragraph (a) ; shall be regarded as being a member of only one board . (5) Subject to the Constitution and to any enactment governing the conditions of service of persons in the full-time employment of the State, such persons may be appointed to the board of a public entity : Provided that— (i) such persons shall not form a majority of the members appointed to any such board ; (ii) no Permanent Secretary of a line or other Ministry shall be appointed to or hold office as a member of any such board . (6) Members of boards of public entities shall be appointed for their knowledge of or experience in administration, management or any other field which is relevant to the operation and management of the public entities concerned. (7) A line Minister shall ensure that, so far as practicable— (a) there are equal numbers of men and women on the board of every public entity for which he or she is responsible; and (b) all Zimbabwe's regions are fairly represented by the members of the board of every public entity for which he or she is the line Minister ; and (c) the members of the board of every public entity of which he or she is the line Minister have an appropriate diversity of skills, experience or qualifications for managing the entity, including skills, experience or qualifications in the fields of law, accountancy and one or more of the engineering disciplines; but all appointments to such boards shall be made primarily on the basis of merit. (8) Where an appropriate directory or database referred to in section 44 (\"Regulations\") (2)(c) has been established, a line Minister in the process of appointing persons to the board of a public entity must, in addition to canvassing candidates outside such directory or database, have due regard to the selection of candidates listed on such directory or database. (9) In appointing or terminating the appointment of any member of the board of a public entity , the line Minister concerned must notify the President of his or her intention to make such appointment or effect such termination, and must not act on such intention without the prior endorsement of the President. (10) Where the enabling instrument of a public entity requires the line Minister to appoint to the entity's board a person who is nominated by some other person or authority, the line Minister shall appoint that person notwithstanding anything to the contrary in subsection (6) , (7) , (8) or (9) . (11) If the number of members of the board of a public entity falls below the number fixed by any law as a quorum of the board — (a) the chief executive officer of the public entity concerned shall immediately notify the line Minister , in writing, of that fact; and (b) the line Minister shall take steps to fill the vacancies on the board within ninety days from the date on which the board 's membership fell below a quorum, and if within that period he or she is unable to appoint sufficient members to reach a quorum of the board , he or she shall cause the Unit to be notified imnediately of that fact. (12) Where a line Minister appoints a person to the board of a public entity , he or she shall cause written notice of the appointment to be sent to the Unit without delay, specifying— (a) the name, address and such other personal particulars of the appointee as the Unit may require; and (b) the appointee's qualifications; and (c) the criteria on which the appointee was chosen for appointment; and (d) whether the appointee is a member of the board of another public entity and, if so, which board ; and (e) Whether the appointee has complied with section 37 , requiring certain disclosures for the purpose of avoiding conflicts of interest. (13) The head of the Unit shall ensure that as soon as practicable after a person has been appointed to the board of a public entity , a notice is published in the Gazette specifying the person's name, the board to which he or she has been appointed and the duration of the appointment. (14) Every line Minister shall cause one or more lists to be kept at the offices of his or her Ministry, showing— (a) the public entities of which he or she is the line Minister ; and (b) the particulars referred to in subsection (12) in respect of each member of the boards of the public entities referred to in paragraph (a) of this subsection; and shall ensure that the list or lists are kept up to date and available for inspection by members of the public at all reasonable times during the Ministry's normal office hours." }, { "provision_ref": "s12", "chapter": "Part III", "section": "12", "title": "Remuneration of non-executive members of public entities", "content": "12. Remuneration of non-executive members of public entities (1) For the purpose of ensuring that, so far as is practicable, the remuneration fixed for non-executive members of public entities are— (a) fair and appropriate, due regard being had to the members' qualifications and experience and the functions they are expected to perform; and (b) reasonably consistent as between different public entities; the Minister , may formulate standard sitting allowances, provisions for out-of-pocket expenses and other payments or benefits compatible with service as a non-executive board member, which standards shall be applicable to board members of all pnblic entities or any particular class of such entities: (2) In formulating standards of remuneration for non-executive members of public entities in terms of subsection (1) , the Minister shall consult the Minister responsible for finance and the line Ministers concerned and shall pay due regard to— (a) the capacity of the public entities concerned to comply with the standards; and (b) standards of remuneration applicable to non-executive members of boards of well-managed companies and other entities of similar size that perform similar functions in the private sector; and (c) the need to ensure that the public entities concerned carry out their operations economically without sacrificing their efficiency and effectiveness. (3) The Minister shall not formulate standards of remuneration for non-executive members of public entities that are inconsistent with this Act or the enabling instruments of the public entities concerned. (4) The Minister may from time to time amend or replace standards of remuneration for non-executive members of public entities, and subsections (1) to (3) shall apply, with any necessary changes, to any such amendment or replacement. (5) As soon as possible after fomulating, amending or replacing any standards of remuneration for non-executive members of public entities in terms of this section, the Minister shall— (a) submit the standards or amendment or replacement thereof for the approval of the Cabinet; and (b) after obtaining Cabinet's approval, keep a copy of the standards and of any amendment or replacement— (i) at the Minister 's offices, where it may be inspected by members of the public, free of charge, at all reasonable times during the Minister 's business hours; and (ii) available in electronic form for inspection by members of the public on the website of the Ministry and the Unit . (6) When fixing the remuneration of a non-executive member , a line Minister or public entity shall observe any standards of remuneration applicable to non-executive members of public entities formulated in terms of this section and may depart from them only with the President's written approval, given after the President has afforded the Minister and the Minister responsible for finance a reasonable opportunity to make any representations on the proposed departure. (7) The head of the line Ministry shall without delay if approval is given to his or her line Minister by the President in accordance with subsection (6) to depart from applicable standards of remuneration for non-executive members of public entities formulated in terms of this section— (a) inform the head of the Unit of that fact and of the particulars of the departure; and (b) publish notice of the departure, and the particulars of it in the Gazette and on the website of the Ministry, within thirty days of the departure being approved. (8) Any contract or arrangement under which a non-executive member receives remuneration or a benefit in excess of an applicable standard fixed in terms of subsection (1) shall be void unless the President has approved it in terms of subsection (6) , and if the member has received any remuneration or benefit under such a contract or arrangement he or she shall reimburse the entity or return any benefit, as the case may be, to the extent that it exceeds the applicable standard. (9) Unless prompt voluntary reimbursement is made of any remuneration or benefit resulting from a contravention of subsection (6) , the non-executive member of the public entity concerned shall be subjected to a surcharge levied in accordance with the Third Schedule for the reimbursable amount." }, { "provision_ref": "s13", "chapter": "Part III", "section": "13", "title": "Conditions of service of executive members of public entities", "content": "13. Conditions of service of executive members of public entities (1) For the purpose of ensuring that, so far as is practicable, conditions of service fixed for executive members of public entities are— (a) fair and appropriate, due regard being had to the members' qualifications and experience and the functions they are expected to perform; and (b) reasonably consistent as between different public entities; the Minister may formulate model service conditions applicable to executive members of all public entities or any particular class of such entities: (2) In formulating model service conditions in terms of subsection (1) , the Minister shall consult the Minister responsible for finance and the line Ministers concerned and shall pay due regard to— (a) the capacity of the public entities concerned to comply with the conditions; and (b) conditions applicable to members of boards of well-managed companies and other entities of similar size that perform similar functions in the private sector; and (c) the need to ensure that the public entities concerned carry out their operations economically without sacrificing their efficiency and effectiveness. (3) The Minister shall not formulate model service conditions that are inconsistent with this Act or the enabling instruments of the public entities concerned. (4) The Minister may from time to time amend or replace model service conditions, and subsections (2) to (3) shall apply, with any necessary changes, to any such amendment or replacement. (5) As soon as possible after formulating, amending or replacing any model service conditions in terms of this section, the Minister shall— (a) submit the standards or amendment or replacement thereof for the approval of the Cabinet; and (b) after being notified of the Cabinet's approval— (i) transmit a copy of the standards and of any amendment or replacement to the Unit 's offices, where it may be inspected by members of the public, free of charge, at all reasonable times during the Unit 's business hours; and (ii) keep a copy of the standards and of any amendment or replacement available in electronic form for inspection by members of the public on the website of the Unit . (6) When fixing the service conditions of an executive member , a line Minister or public entity shall observe any applicable model service conditions formulated in terms of this section and may depart from them only with the President's written approval, given after the President has afforded the Minister and the Minister responsible for finance a reasonable opportunity to make any representations on the proposed departure. (7) The head of the line Ministry shall without delay if approval is given to his or her line Minister by the President in accordance with subsection (6) to depart from applicable model service conditions formulated in terms of this section, inform the head of the Unit of that fact and of the particulars of the departure. (8) Any service condition fixed in contravention of subsection (5) shall be void, and, if the member concerned has enjoyed any service condition resulting from that contravention, he or she must reimburse the entity concerned or return to it any property constituting the service condition. (9) Unless prompt voluntary reimbursement is made of any money or money's worth of a condition of service enjoyed in contravention of subsection (5) , the executive member of the public entity concerned shall be subjected to a surcharge levied in accordance with the Third Schedule for the reimbursable amount." }, { "provision_ref": "s14", "chapter": "Part III", "section": "14", "title": "Restriction on remuneration of board members of public entities", "content": "14. Restriction on remuneration of board members of public entities (1) The Minister , with the approval of the Minister responsible for finance, and after consultation with the line Minister concerned, may by notice published in the Gazette specify the amount that may be received, by way of remuneration, allowances and other benefits, by members of the board of any public entity : Provided that if the line Minister does not respond within thirty days from his or her receipt of a written request by the Minister seeking consultation with respect to the Minister's proposed amounts that may be received by board members by way of remuneration, allowances and other benefits, the consultation shall be deemed to have been undertaken and the Minister may proceed to publish the relevant notice in the Gazette . (2) An amount may be specified for the purposes of subsection (1) — (a) as a specific amount or value; or (b) as a maximum amount or value; or (c) by reference to any other criteria that the Minister considers appropriate. (3) Notwithstanding any other law, where a notice has been published in terms of subsection (1) fixing an amount to be received by members of any board , no such members shall be paid or given any remuneration, allowance or benefit in excess of the amount specified in the notice: Provided that a person who, immediately before the notice was published, was being paid or given a higher amount shall be entitled to be paid or given that higher amount for three months after the publication of the notice. (4) No public entity shall— (a) extend any loan or credit to; or (b) enter into or facilitate any transaction whose net effect is substantially similar to extending a loan or credit to; a member of the entity's board or to an associate of a board member. (5) Any— (a) board member of a public entity who knowingly authorises a loan, extension of credit or transaction in contravention of subsection (4) ; or (b) board member who knowingly accepts, on his or her own behalf or on behalf of an associate , a loan, extension of credit or transaction in contravention of subsection (4) ; shall be guilty of an offence and liable to a fine not exceeding level ten or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment. (6) In addition and independently of the institution of any criminal or civil penalty proceedings, any property of any description obtained by means of an extension of credit, or a loan, or any other such transaction whose net effect is substantially similar to an extension of credit or a loan, made in contravention of this section, shall be deemed to be \"tainted property\" resulting from the commission of a \"serious offence\" for the purposes of section 80 (\"Civil forfeiture orders\") of the Money Laundering and Proceeds of Crime Act [Chapter 9 :24] (No. 4 of 2013), and may be recovered at the instance of the Attorney-General or Prosecutor-General in terms of that section. (7) No public entity shall pay a member of its board a sitting allowance or other amount in respect of attendance at a meeting unless the meeting has been held and the member has attended it: Provided that an appropriate amount may be paid to a member who attends at the venue of a meeting which is subsequently postponed or cancelled. (8) This section shall not limit the obligation of an accounting officer or member of the Civil Service employed in a line Ministry to comply with section 51A (\"Separation of roles of appropriate Ministries and public entities\") of the Public Finance Management Act [Chapter 22:19] that is, to seek clearance from the Treasury before approving the remuneration or allowance of any member of a public entity. (9) Unless prompt voluntary reimbursement is made of any remuneration, allowance, benefit or payment made in contravention of subsection (4) or (7) , without prejudice to any other remedies that may be available in terms of this Act, the recipient shall be subject to a surcharge levied in accordance with the Third Schedule for the recovery of the amount he or she was paid or benefited from the contravention." }, { "provision_ref": "s15", "chapter": "Part III", "section": "15", "title": "Resignation of board members of public entities", "content": "15. Resignation of board members of public entities (1) Where a board member of a public entity resigns, the head of the line Ministry shall endeavour to ascertain from the member the reasons for his or her resignation, and any findings made by the head of the line Ministry in that regard shall be communicated without delay to the Unit . (2) Where two or more board members of a public entity resign, whether simultaneously or within a period of one month, the line Minister may conduct an investigation in order to ascertain the reasons for their resignations, and any findings made by the line Minister shall be communicated without delay to the Office of the President and Cabinet. (3) An investigation in terms of subsection (2) may be conducted as a special investigation in terms of section 41 (\"Special investigations\") or in such other manner as may be prescribed or as the President, through the Office of the President and Cabinet, may determine. (4) A person whose resignation is the subject of inquiry in terms of subsection (1) or investigation in terms of subsection (2) shall answer truthfully to the best of his or her ability all questions that are put to him or her as to the reasons for his or her resignation: Provided that this subsection shall not be construed as compelling a person to answer any question whose answer may subject him or her to any civil or criminal penalty. (5) In any case where a head of a line Ministry or a line Minister declines to exercise his or her powers under subsection (1) or (2) , the Minister responsible for this Act may, with the leave of the President, do so, after the President has afforded the line Minister a reasonable opportunity to exercise such powers or to make such representations on the matter as the line Minister thinks fit or relevant." }, { "provision_ref": "s16", "chapter": "Part III", "section": "16", "title": "Dismissal of board members of public entities", "content": "16. Dismissal of board members of public entities (1) Notwithstanding any provision to the contrary in the enabling instrument of the entity concerned, no board member of a public entity shall be dismissed or required to vacate his or her office unless— (a) he or she has been guilty of conduct inconsistent with his or her membership of the entity; or (b) he or she has become disqualified for appointment to the board ; or (c) where he or she was appointed to the board by virtue of having a particular qualification, he or she has ceased to have that qualification; or (d) he or she has failed to comply with his or her conditions of service or with the provisions of his or her performance contract ; or (e) he or she, whether individually or together with other members of the board , has failed to draw up a strategic plan or to comply with its provisions or to attain any material objective set out in it; or (f) he or she has been absent, without just cause and without leave of the board or its chairperson, from three or more consecutive meetings of the board ; nor, in any such case, unless the line Minister has been given at least seven days' written notice of the intended dismissal or removal from office. (2) The head of the line Ministry shall promptly infonn the head of the Unit of the dismissal or removal from office of a board member of a public entity . (3) If the head of the Unit considers that the dismissal or removal from office of a board member of a public entity , of which he or she has been informed in terms of subsection (2) or of which he or she has become aware in the absence of such information, will be unlawful or unjustified, he or she shall without delay inform the Minister who may, if he or she agrees with the head of the Unit , request the line Minister to reconsider the matter. (4) If the Minister and the line Minister are unable to resolve the question of whether or not a board member should be dismissed or required to vacate his or her office, the Minister shall seek the leave of the President to refer the matter to the Cabinet for a decision. (5) This section shall not— (a) be construed as denying a board member any remedy to which he or she may be entitled in regard to unfair or unlawful dismissal or removal from office; (b) apply to the removal from office of a board member representing minority interests . Part IV – Appointment and conditions of service of senior staff of public entities" }, { "provision_ref": "s17", "chapter": "Part IV", "section": "17", "title": "Appointment of chief executive officers of public entities", "content": "17. Appointment of chief executive officers of public entities (1) Notwithstanding any other enactment, no person shall be appointed as chief executive officer of a public entity — (a) for a term longer than five years, which term may be renewed for only one further such term; (b) if he or she has already served as chief executive officer of the entity for one or more periods, whether consecutive or not, amounting in the aggregate to ten years; (c) unless the appointment is reviewable annually by the entity's board and terminable if, after such a review, the board finds that the appointee's performance has not met the standards laid down in the appointee's performance contract or in any other instrument regulating his or her employment: Provided that no chief executive officer shall, even if his or her performance has met such standards, be re-appointed after the tenth annual review, unless the President's approval of the re-appointment is obtained. (2) Notwithstanding any other enactment, the chief executive officer of every public entity shall be appointed by the board of the entity and with the approval of the President. (3) Before appointing a chief executive officer , the board of a public entity shall— (a) publish, in a newspaper circulating in the area in which the public entity concerned conducts its activities, at least two advertisements calling for applications to fill the post of chief executive officer (in this paragraph \"newspaper\" means a national newspaper or a newspaper circulating in the area where the public entity has its principal place of business); and (b) interview the applicants, or such of them as appear to possess the qualifications for the post; and (c) select from among the interviewed applicants the person who appears to the board to be most suitable for appointment as chief executive officer , ensuring that the selection is made primarily on merit while ensuring that, so far as practicable, men and women and all Zimbabwe's regions are fairly represented in the entity's management. (4) The board of every public entity shall ensure that the post of chief executive officer of the entity is never left vacant for more than six months and that, in the event of a vacancy of more than one month— (a) the entity's deputy chief executive officer , if there is one, is appointed to act as chief executive officer ; or (b) if there is no deputy chief executive officer , a member of the entity's staff or a board member is appointed to act as chief executive officer ; pending the appointment of a substantive chief executive officer . (5) As soon as possible after being appointed or re-appointed a chief executive officer must comply with section 37 , requiring certain disclosures for the purpose of avoiding contlicts of interest." }, { "provision_ref": "s18", "chapter": "Part IV", "section": "18", "title": "Appointment of senior staff of public entities", "content": "18. Appointment of senior staff of public entities (1) When appointing senior staff members, other than a chief executive officer , the board of every public entity shall ensure that, so far as practicable, men and women and all Zimbabwe's regions are fairly represented in the entity's management, but all such appointments shall be made primarily on the basis of merit. (2) Where the board of a public entity appoints a senior staff member , it shall cause written notice of the appointment to be sent to the line Minister without delay, specifying— (a) the name, address and such other personal particulars of the appointee as the Unit may require in terms of subsection (4) ; and (b) the appointee's qualifications; and (c) the criteria on which the appointee was chosen for appointment; and (d) whether the appointee has complied with section 37 , requiring certain disclosures for the purpose of avoiding conflicts of interest. and without delay shall send the line Minister a copy of the appointee's contract of employment with the entity. (3) The head of the line Ministry shall promptly despatch to the Unit the particulars furnished by the board to the line Minister under subsection (2) , including a copy of the appointee's contract of employment with the entity. (4) The Office of the President and Cabinet may circulate to heads of line Ministries, the additional personal particulars required for the purposes of subsection (2)(a) . (5) Subject to subsection (6) , this section does not derogate from any statutory power conferred on a line Minister to give policy directions to a board of a public entity . (6) If any action taken by a line Minister pursuant to a power referred to in subsection (5) has the effect of overriding a board 's judgment as to the fitness of any person to be employed by the entity for which it is responsible, and the head of the Unit considers that such action is contrary to any principle of good corporate governance embodied in the First and Second Schedules, the head of the Unit shall express his or her opinion to that effect in writing to the Minister responsible for this Act, who shall, if he or she thinks that the opinion has merit, seek the leave of the President to refer the matter to the Cabinet." }, { "provision_ref": "s19", "chapter": "Part IV", "section": "19", "title": "Conditions of service of senior staff of public entities", "content": "19. Conditions of service of senior staff of public entities (1) The conditions of service of chief executive officers and other senior staff members of public entities shall— (a) be fixed by the boards of the entities concerned at properly constituted meetings; and (b) be consistent with the staff members' performance contracts; and (c) specify clearly any terminal benefits to which the staff members are entitled; and (d) be recorded fully in the minutes of the meetings at which the conditions are fixed. (2) For the purpose of ensuring that, so far as is practicable, conditions of service fixed for chief executive officers and other senior staff members of public entities are— (a) fair and appropriate, due regard being had to their qualifications and experience and the functions they are expected to perform; and (b) reasonably consistent as between different public entities; the Minister , may formulate model service conditions applicable to chief executive officers and senior staff members of all public entities or any particular class of such entities. (3) In formulating model service conditions in terms of subsection (2) , the Minister shall, through the line Ministers concerned, consult the heads of line Ministries concerned and shall pay due regard to— (a) the capacity of the public entities concerned to comply with the conditions; and (b) conditions applicable to senior employees of well-managed companies and other entities of similar size that perform similar functions in the private sector; and (c) the need to ensure that the public entities concerned carry out their operations economically without sacrificing their efficiency and effectiveness. (4) The Minister shall not formulate model service conditions that are inconsistent with this Act or the enabling instruments of the public entities concerned. (5) The Minister may from time to time amend or replace model service conditions, and subsections (1) to (4) shall apply, with any necessary changes, to any such amendment or replacement. (6) As soon as possible after formulating, amending or replacing any model service conditions in terms of this section, the Minister shall, after obtaining Cabinet's approval, keep a copy of the model service conditions and of any amendment or replacement— (a) at the Minister 's offices, where it may be inspected by members of the public, free of charge, at all reasonable times during the Minister 's business hours; and (a) available in electronic form for inspection by members of the public on the website of the Ministry and the Unit . [Please note: numbering as in original.] (7) When fixing the service conditions of a chief executive officer or senior staff member of a public entity , a board shall not, without the line Minister 's written approval given in accordance with subsection (9) , depart from any applicable model service conditions formulated in terms of this section. (8) If the line Minister considers that it is appropriate, on the basis of representations made to him or her by the board , to depart from any applicable model service conditions formulated in terms of this section, the line Minister shall inform the President of his or her intention to do so, and shall not give the board approval to depart therefrom without the President's written leave to do so, given after the President has afforded the Minister and the Minister responsible for finance a reasonable opportunity to make any representations on the proposed departure. (9) The head of the line Ministry shall without delay if approval is given by his or her line Minister in accordance with subsection (8) to depart from applicable model service conditions formulated in terms of this section, inform the head of the Unit of that fact and of the particulars of the departure. (10) Any service condition fixed in contravention of this section shall be void. (11) Unless prompt voluntary reimbursement is made of any money or money's worth of a condition of service enjoyed in contravention of this section, the non-executive member of the public entity concerned shall be subjected to a surcharge levied in accordance with the Third Schedule for the reimbursable amount." }, { "provision_ref": "s20", "chapter": "Part IV", "section": "20", "title": "Restriction on remuneration of senior staff of public entities", "content": "20. Restriction on remuneration of senior staff of public entities (1) The Minister , with the approval of the Minister responsible for finance, and after consultation with the line Minister concerned, may by notice published in the Gazette , specify the maximum amounts that may be received, by way of remuneration, allowances and other benefits, by the chief executive officer and other senior staff members of any public entity : Provided that if the line Minister does not respond within thirty days from his or her receipt of a written request by the Minister seeking consultation with respect to the Minister's proposed amounts that may be received by the chief executive officer and other senior staff members of any public entity by way of remuneration, allowances and other benefits, the consultation shall be deemed to have been undertaken and the Minister may proceed to publish the relevant notice in the Gazette . (2) In specifying the maximum amounts that may be received, by way of remuneration, allowances and other benefits, by the chief executive officer and other senior staff members of any public entity , the Minister shall be guided by the principle that the proportion of such remuneration, allowances and benefits that may be received by all employees of the public entity concerned (including the chief executive officer and other senior staff members) must not in general exceed thirty per centum of that entity's revenues or operational budget in the past financial year. (In this subsection \"operational budget\" means the detailed projection of all estimated income and expenses based on forecasted revenue during a given period (usually one year), and has particular reference to an entity which is funded to a significant degree by State subventions or other monies not deriving from any revenues generated by it). (3) Notwithstanding any other law, where a notice has been published in terms of subsection (1) , no person to whom the notice applies shall be paid or given any remuneration, allowance or benefit in excess of the amount specified in the notice: Provided that a person who, immediately before the notice was published, was being paid or given a higher amount shall be entitled to be paid or given that higher amount for three months after the publication of the notice. (4) No public entity shall— (a) extend any loan or credit to; or (b) enter into or facilitate any transaction whose net effect is substantially similar to extending a loan or credit to; a senior staff member of the entity or to an associate of a senior staff member , except in such circumstances, and on such terms and conditions, as are permitted by conditions of service that are applicable to the member and to all other employees of the entity. (5) Any— (a) board member of a public entity who knowingly authorises a loan, extension of credit or transaction in contravention of subsection (4) ; or (b) senior staff member who knowingly accepts, on his or her own behalf or on behalf of an associate , a loan, extension of credit or transaction in contravention of subsection (4) ; shall be guilty of an offence and liable to a fine not exceeding level ten or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment. (6) In addition and independently of the institution of any criminal or civil penalty proceedings, any property of any description obtained by means of an extension of credit, or a loan, or any other such transaction whose net effect is substantially similar to an extension of credit or a loan, made in contravention of this section, shall be deemed to be \"tainted property\" resulting from the commission of a \"serious offence\" for the purposes of section 80 (\"Civil forfeiture orders\") of the Money Laundering and Proceeds of Crime Act [Chapter 9 :24] (No. 4 of 2013), and may be recovered at the instance of the Attorney-General or Prosecutor-General in terms of that section. (7) Unless prompt voluntary reimbursement is made of any remuneration, allowance, benefit or payment resulting from a contravention of subsection (3) or (4) , without prejudice to any other remedies that may be available in terms of this Act, the recipient shall be subject to a surcharge levied in accordance with the Third Schedule for the recovery of the amount he or she was paid or benefited from the contravention." }, { "provision_ref": "s21", "chapter": "Part IV", "section": "21", "title": "Restriction on terminal benefits payable to executive members and senior staff of public entities", "content": "21. Restriction on terminal benefits payable to executive members and senior staff of public entities (1) Subject to this section, no public entity shall pay any amount by way of a gratuity or other terminal benefit to a former executive member or senior staff member in respect of his or her service on the entity's board or the entity, unless the proposed amount has been notified to the line Minister and the Minister responsible for finance and approved or ratified by shareholders or stakeholders at the annual meeting of the public entity concerned that is convened in terms of section 33 (3): Provided that, where the amount is paid in accordance with a scheme or arrangement that has been approved by the line Minister and the Minister responsible for finance, such approval need not be obtained for the payment of that particular amount. (2) Unless prompt voluntary reimbursement is made of any amount resulting from a contravention of subsection (1) , the recipient concerned shall be subjected to a surcharge levied in accordance with the Third Schedule for the reimbursable amount. Part V – Strategic plans and performance contracts" }, { "provision_ref": "s22", "chapter": "Part V", "section": "22", "title": "Strategic plans of public entities", "content": "22. Strategic plans of public entities (1) The board of every public entity shall, in accordance with this section, draw up a strategic plan for every public entity for which it is responsible, to— (a) set the entity's objectives and priorities for a period of between two and six years, as the board may decide; and (b) determine the manner in which the entity is to achieve those objectives and priorities; and (c) strengthen the entity's management systems with a view to achieving those objectives and priorities. (2) A strategic plan shall deal with such of the following matters as are relevant to the entity— (a) the core functions of the entity, and the relative importance of those functions; (b) key performance indicators by which the entity's performance will be evaluated; (c) the structure of the entity's business and financial plan; (d) measures needed to protect the entity's financial soundness; (e) the principles to be followed at the end of each financial year in respect of any surplus in the entity's revenues; (f) where the entity provides any service or conducts any commercial or semi-commercial business, the standards of service to be provided and the relationship between the entity and other business entities; (g) the relationship between the State and the entity; (h) the exercise of the functions of the line Minister and the board under the entity's enabling instmment ; (i) any other matter relating to the performance of the entity's functions. (3) The board of every public entity shall draw up a strategic plan and shall consult the line Minister , the Minister and Minister responsible for finance on all material provisions of the plan and pay due regard to any representations and recommendations the line Minister , the Minister and the Minister responsible for finance may make in regard to the plan. (4) After approving a strategic plan , the board of the public entity concerned shall— (a) without delay send a copy of the plan to— (i) the line Minister , who shall lay a copy of the plan before the National Assembly on one of the ten days on which the Assembly sits after the line Minister approves it; and (ii) the Unit ; and (iii) the Minister responsible for finance; and (b) cause a copy of the plan to be kept— (i) at the entity's office, where it may be inspected by members of the public free of charge at all reasonable times during the entity's business hours; and (ii) available in electronic form for inspection by members of the public on the website of the Unit and of the entity." }, { "provision_ref": "s23", "chapter": "Part V", "section": "23", "title": "Performance contracts with senior staff of public entities", "content": "23. Performance contracts with senior staff of public entities (1) Upon the appointment of a person as chief executive officer or senior staff member of a public entity , the board of the entity shall require him or her to enter into a written performance contract with the board , in accordance with this section. (2) A performance contract shall— (a) if applicable, contain provisions relating to any matter affecting the efficient performance of the person's duties respecting the public entity concerned; and (b) contain provisions— (i) specifying key performance indicators by which the person's performance will be measured; and (ii) prescribing the penalties, including dismissal, suspension and forfeiture of remuneration or other benefits, to be incurred if the person fails to perform his or her duties efficiently in accordance with the contract; and (iii) requiring the person's performance to be evaluated by the board of the entity concerned— A. at least once every six months, in the case of a chief executive officer ; B. at such intervals as may be prescribed, in the case of any other senior staff member . (3) Notwithstanding any other enactment, a person shall not assume office as chief executive officer or senior staff member of a public entity unless he or she has entered into a performance contract in terms of this section. (4) The board of a public entity must without delay transmit— (a) to the head of the line Ministry a copy of the performance contract with the chief executive officer and a copy of every performance contract with a senior staff member ; (b) to the Unit a copy of the performance contract with the chief executive officer . (5) Nothing in this section shall be construed as preventing the board of a public entity from entering into performance contracts with employees who are not senior staff members." }, { "provision_ref": "s24", "chapter": "Part V", "section": "24", "title": "Review and monitoring of compliance with strategic plans and performance contracts", "content": "24. Review and monitoring of compliance with strategic plans and performance contracts (1) In this section \"review\", in relation to— (a) a strategic plan , means an evaluation of the degree of compliance and progress (if any) achieved towards attaining the objectives of its strategic plan during the previous year; (b) a performance contract , means an annual appraisal of the performance of an individual senior staff member who is a party to such contract, as measured against specified key performance indicators and any other benchmarks approved by the Unit . (2) The board of every public entity shall annually review its current strategic plan and every current performance contract with senior staff members of such entity, and report the results of its review to the line Minister and the Minister. (3) Where the board of a public entity is required by its enabling instrument to submit an annual report to Parliament, the board shall submit the report to its line Minister within three months after the end of the entity's financial year. (4) Where a public entity is not required by its enabling instrument to submit an annual report to Parliament, its board shall, within three months after the end of the entity's financial year, submit a report to the entity's line Minister outlining the entity's activities during that financial year. (5) Together with the reports referred to in subsections (3) and (4) , the board of every public entity shall submit to its line Minister — (a) a copy of the entity's current strategic plan ; and (b) copies of current performance contracts with the entity's senior staff members; and (c) the results of the latest reviews of the strategic plan and the performance contracts conducted in terms of subsection (2) ; and (d) such other documents and information as may be prescribed. (6) A line Minister shall cause every report submitted to him or her in terms of subsection (3) to be laid before the Senate and the National Assembly without delay and in any event within the next ten days on which the Houses sit after he or she received it. (7) As soon as practicable after laying before the National Assembly the annual report in terms of subsection (5) , the head of the line Ministry concerned shall make it available in electronic form for inspection by members of the public on the website of the Ministry and of the Unit ." }, { "provision_ref": "s25", "chapter": "Part V", "section": "25", "title": "Performance contracts with board members of public entities", "content": "25. Performance contracts with board members of public entities (1) Within two months after a person is appointed to the board of a public entity , the line Minister shall enter into a written performance contract with the member, in accordance with this section and any recommendations made by the Unit : Provided that board members representing minority interests shall not be required to enter into performance contracts in terms of this section. (2) A performance contract may contain provisions relating to any matter affecting the efficient performance of the member's duties in relation to the public entity concerned. (3) Without limiting subsection (2) , the following conditions shall apply to every member of the board of a public entity as if they were contained in the member's performance contract — (a) in the performance of the functions of his or her office, the member shall at all times— (i) act honestly; and (ii) exercise a reasonable degree of care and diligence; (b) the member, while holding office and thereafter, shall not make improper use of information acquired by virtue of his or her position as a member to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the public entity ; (c) the member shall not make use of his or her position as a member to gain, directly or indirectly, an advantage for himself or herself or for any other person or cause detriment to the public entity . (4) Notwithstanding any other enactment, if within two months after a member's appointment to the board of a public entity he or she has not entered into a performance contract in terms of subsection (1) , he or she shall thereupon cease to be a member of the board unless he or she establishes that— (a) the failure to enter into the contract was attributable to undue delay on the part of the line Minister or any person acting on that Minister's behalf; or (b) one or more of the provisions of the contract were so grossly unreasonable that he or she was justified in refusing to sign it. (5) Copies of every performance contract concluded in terms of this section shall without delay be filed for record at the office of the line Minister concerned and transmitted to the Unit . (6) If a person, having entered into a performance contract in terms of this section, contravenes a condition referred to in subsection (3) or any other condition of the contract— (a) notwithstanding anything to the contrary in the enabling instrument of the public entity concerned, the contravention shall be a ground for removing the member from office; (b) whether or not the member has been removed from office, the line Minister or the public entity concerned may by proceedings in a competent court recover from him or her, as a debt due to the entity— (i) the amount or value of any damage or loss suffered by the entity as a result of the contravention; and (ii) the amount or value of any profit or advantage that accrued to him or her or to any other person he or she intended to benefit through the contravention. (7) Subsection (6) shall not be construed as limiting any other law relating to the criminal or civil liability of a member of a board , and shall not prevent the institution of criminal or civil proceedings in respect of any liability referred to in that subsection. Part VI – Board charters, codes of ethics and National Code of Corporate Governance" }, { "provision_ref": "s26", "chapter": "Part VI", "section": "26", "title": "Public entities to honour Good Corporate Governance Code and prepare board charters and codes of ethics", "content": "26. Public entities to honour Good Corporate Governance Code and prepare board charters and codes of ethics (1) The board of every public entity shall conduct the business and affairs of the entity in accordance with— (a) the provisions of the Good Corporate Governance Code , where the entity is a public commercial entity ; and (b) such of the principles of good governance set out in the Second Schedule as are applicable to the public entity concerned, where it is not a company. (2) Subject to this Part— (a) the board of every public entity shall prepare a board charter ; (b) the chief executive officer of every public entity shall prepare a code of ethics for the entity; and shall conduct the business and affairs of the entity in accordance with that charter and code. (3) A board charter and code of ethics shall incorporate such of the principles set out in section 27 as are applicable to the public entity concerned. (4) So far as is practicable and appropriate, the board of a public entity and the chief executive officer shall consult the employees of the entity and the general public when formulating a board charter and code of ethics . (5) The Unit shall provide the board of a public entity and chief executive officer with whatever assistance it can in the preparation of the entity's board charter and code of ethics ." }, { "provision_ref": "s27", "chapter": "Part VI", "section": "27", "title": "Principles and contents of board charters and codes of ethics", "content": "27. Principles and contents of board charters and codes of ethics Every board charter and code of ethics shall give effect to the following principles— (a) the promotion and maintenance of a high standard of professional ethics; and (b) efficient and economic use of available resources; and (c) the provision of services impartially, fairly, equitably and without bias; and (d) responsiveness to the needs of the people of Zimbabwe, including the prompt and sensitive processing of complaints by members of the public with respect to the entity's interaction with them; and (e) co-operation with governmental institutions and other public entities; and (f) openness and transparency in the internal workings and procedures of the public entity concerned, and in its dealings with the public; and (g) the maximising of the human resources of the public entity concerned; and (h) commercial viability, in the case of a public commercial entity ; and generally shall be directed at ensuring efficiency, effectiveness, responsibility, accountability and honesty in the procedures, operations and activities of the public entity concerned." }, { "provision_ref": "s28", "chapter": "Part VI", "section": "28", "title": "Approval of board charters and codes of ethics", "content": "28. Approval of board charters and codes of ethics (1) Having prepared a board charter in terms of section 26 , the board of a public entity shall without delay secure the line Minister's approval of the charter before sending it to the Office of the President and Cabinet. (2) The line Minister may withhold his or her approval of a board charter if he or she considers that any of its provisions— (a) contravene this Act or any other enactment; or (b) are contrary to the policy of the Government or to the public interest; and in that event the public entity shall without delay alter the code to take account of the line Minister 's views. (3) Having prepared a code of ethics in terms of section 26 , the chief executive officer of a public entity shall without delay secure the board's approval of the code before sending it to the Office of the President and Cabinet, which shall transmit the same to the Unit for evaluation. (4) The board may withhold its approval of a code of ethics if it considers that any of its provisions— (a) contravene this Act or any other enactment; or (b) are contrary to the policy of the Government or to the public interest; and in that event the chief executive officer shall without delay alter the code to take account of the board 's views. (5) If on receipt of a board charter and code of ethics the Unit considers that any of its provisions— (a) contravene this Act or any other enactment; or (b) are contrary to the public interest; the head of the Unit shall inform the Minister accordingly, whereupon the Minister shall endeavour, by negotiation with the line Minister and (through the line Minister ) the board of the public entity concerned, to secure the amendment of the charter or code. (6) If the Minister fails to secure the amendment of a charter or code in terms of subsection (5) , and the Minister is of the opinion that the failure may be detrimental to the business of the entity in question, the Minister shall seek the leave of the President to refer the matter to Cabinet." }, { "provision_ref": "s29", "chapter": "Part VI", "section": "29", "title": "Amendment of board charters and codes of ethics", "content": "29. Amendment of board charters and codes of ethics The board of a public entity and the entity's chief executive officer may respectively amend the entity's charter and code of ethics at any time, and sections 26 , 27 and 28 shall apply, with any necessary changes, to such an amendment." }, { "provision_ref": "s30", "chapter": "Part VI", "section": "30", "title": "Board charters and codes of ethics to be available for inspection", "content": "30. Board charters and codes of ethics to be available for inspection The board of every public entity shall ensure that a copy of the entity's board charter and codes of ethics are kept— (a) at the entity's office, where they may be inspected by members of the public free of charge at all reasonable times during the entity's business hours; and (b) available in electronic form for inspection by members of the public on the entity's website." }, { "provision_ref": "s31", "chapter": "Part VI", "section": "31", "title": "Monitoring of compliance with Good Corporate Governance Code , board charters and codes of ethics", "content": "31. Monitoring of compliance with Good Corporate Governance Code , board charters and codes of ethics (1) In this section \"standard of compliance\" in relation to a public entity refers to the level of compliance by the entity with the Good Corporate Governance Code, such of the principles of good governance set out in the Second Schedule as are applicable to the public entity concerned, and the relevant board charter . (2) Subject to this Act and any other enactment— (a) every line Minister is responsible for monitoring compliance by the public entity of which he or she is the line Minister with the Good Corporate Governance Code, such of the principles of good governance set out in the Second Schedule as are applicable to the public entity concerned, and its board charter ; and (b) every board of a public entity is responsible for monitoring compliance by the employees of the public entity with the entity's code of ethics ; and (c) the Unit is responsible for overseeing general compliance by public entities with the Good Corporate Governance Code and such of the principles of good governance set out in the Second Schedule as are applicable to the public entities concerned. (3) In the general exercise of the line Minister 's responsibility under subsection (2)(a) , or upon a request made in writing to the head of the line Ministry by the Unit to investigate a particular alleged instance of non-compliance that has come to the notice of the Unit (which request must be accompanied by any information at the disposal of the Unit that supports the request), the line Minister may— (a) require the board or the chief executive officer of any public entity to supply the line Minister with such information regarding the entity's standard of compliance as the line Minister may reasonably require; and (b) send officers of the line Ministry to conduct such inspections and inquiries at the offices of any public entity as the line Minister considers reasonably necessary to assess the entity's standard of compliance. (4) In any case where a line Minister declines to exercise his or her powers under subsection (3) , the Minister responsible for this Act may seek the leave of the President to empower the Unit to do so, after the President has afforded the line Minister a reasonable opportunity to exercise such powers or to make such representations on the matter as the line Minister thinks fit or relevant (if the President gives leave to the Unit to proceed, the Unit shall exercise the powers under subsection (3) as if references to the line Minister and the line Ministry were substituted by references to the Minister and the Unit ). (5) An officer of the line Ministry or of the Unit , as the case may be, may for the purposes of subsection (2)(b) require any board member or employee of the public entity concerned— (a) to produce to the officer any documents relating to the entity's standard of compliance that are in the person's custody or under his or her control; and (b) to provide the officer with any information relating to the entity's standard of compliance; and (c) to give the officer all reasonable assistance in connection with the officer's inspection or inquiry. (5) A person who— (a) provides the line Minister , the Unit or an officer of the line Ministry or Unit (as the case may be) with false information for the purpose of subsection (2) or (4) , knowing it to be false or having no reasonable grounds for believing it to be true; or (b) without just cause, fails or refuses to answer any question or provide any information or produce any document when required to do so in terms of subsection (2) or (3) ; or (c) hinders or obstructs an officer of the line Ministry or Unit (as the case may be) in the exercise of the officer's duties under subsection (4) ; shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment." }, { "provision_ref": "s32", "chapter": "Part VI", "section": "32", "title": "Application of other codes of corporate governance to public entities", "content": "32. Application of other codes of corporate governance to public entities Where a public entity is a company and required to comply with— (a) a code of good corporate governance prescribed under the Securities and Exchange Act [Chapter 24:25] or any other enactment; or (b) the listing rules of any securities exchange; it shall, to the extent that the requirements or standards concerned are more stringent than those provided for under this Act, comply with such code and rules. Part VII – Conduct of business by boards of public entities" }, { "provision_ref": "s33", "chapter": "Part VII", "section": "33", "title": "Meetings of boards of public entities", "content": "33. Meetings of boards of public entities (1) The chairperson of the board of every public entity shall ensure that the board meets at least once every three months. (2) Notwithstanding anything to the contrary in the enabling instrument concerned, but subject to the Constitution, a board of a public entity may meet without a quorum for ninety days after the number of members appointed to it ceased to constitute a quorum of the board : Provided that any decisions reached by the board while its membership does not constitute a quorum shall cease to have effect after the ninety-day period unless they have been ratified by a meeting of the board at which a quorum is present. (3) At least once a year, the board of every public entity shall convene an annual general meeting , that is to say, a meeting to which— (a) representatives of the Unit ; and (b) the Accountant-General; and (c) representatives of the line Ministry; and (d) representatives of any minority shareholders in the entity concerned; and (e) the Auditor-General; and (f) such other persons as may be prescribed; are invited to attend and discuss the entity's operations and conduct during the previous financial year and its plans for the next financial year, and any other matters of mutual interest. (4) At least twice a year, every line Minister shall meet the board of each public entity for which he or she is responsible, for the purpose of discussing the entity's conduct and plans, the board 's compliance with its strategic plan , and any other matters of mutual interest. (5) Minutes shall be kept in accordance with section 35 of every meeting under subsection (3) or (4) as if the meeting was a meeting of the board of the entity." }, { "provision_ref": "s34", "chapter": "Part VII", "section": "34", "title": "Conflicts of interest on part of board members and staff of public entities", "content": "34. Conflicts of interest on part of board members and staff of public entities (1) If— (a) a member of a board of a public entity or senior staff member of a public entity — (i) being a board member, knowingly acquires or holds a direct or indirect pecuniary interest in any matter that is under consideration by the board ; or (ii) owns any property or has a right in property or a direct or indirect pecuniary interest in a company or association of persons which results in his or her private interests coming or appearing to come into conflict with his or her functions as a board member or senior staff member of the public entity ; or (iii) knowingly acquires or holds a direct or indirect pecuniary interest in any matter that is or, to his or her knowledge, is likely to be the subject-matter of a contract between the public entity and any other person; or (iv) knows or has reason to believe that any of his or her associates— A. has acquired or holds a direct or indirect pecuniary interest in any matter that (being a board member) is under consideration by the board or that is or, to his or her knowledge, is likely to be the subject-matter of a contract between the public entity and any other person; or B. owns any property or has a right in property or a direct or indirect pecuniary interest in a company or association of persons which results in his or her private interests coming or appearing to come into conflict with his or her functions as a board member or senior staff member of the public entity ; or (b) for any other reason, the private interests of a board member or senior staff member of a public entity come into contlict with his or her functions as a board member or member of the entity's staff; the board member or senior staff member shall forthwith disclose the fact to the entity's board . (2) A member referred to in subsection (1) shall— (a) if he or she is a board member, take no part in the consideration or discussion of, or vote on, any question before the board which relates to any interest, property or right referred to in that subsection; (b) if he or she is a senior staff member of a public entity , take no part in the entity's dealings in relation to any matter requiring disclosure under that subsection, except on the written instructions of the board of the entity concerned, given after the disclosure of the interest concerned. (3) No employee of a public entity shall be present when the entity's board discusses his or her conditions of service. (4) The board of every public entity shall request all senior staff members of the entity to sign, as soon as possible after their first appointment, a document stating that they are aware of and will abide by their obligations under this section. (5) The chief executive officer of every public entity shall request all members of the entity's board to sign, as soon as possible after their first appointment to the board , a document stating that they are aware of and will abide by their obligations under this section. (6) Until— (a) a senior staff member of a public entity who has been requested to sign the document referred to in subsection (4) has signed the document; or (b) a board member of a public entity who has been requested to sign the document referred to in subsection (5) has signed the document; he or she shall not— (c) take part in any business of the board , in the case of a board member; or (d) in the case of a board member, receive any remuneration or allowance in respect of his or her membership of the board , or, in the case of senior staff member , receive any remuneration or allowance in respect of his or her employment by the entity. (7) Any person who contravenes subsection (1) , (2) or (3) shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment." }, { "provision_ref": "s35", "chapter": "Part VII", "section": "35", "title": "Minutes of meetings of boards of public entities", "content": "35. Minutes of meetings of boards of public entities (1) The board of every public entity shall cause minutes of all its meetings, and all meetings of its committees, to be entered in books kept for the purpose. (2) Minutes referred to in subsection (1) shall record accurately and fully the proceedings at the meetings concerned and all decisions taken at the meetings. (3) Minutes referred to in subsection (1) which purport to be signed, with the authority of the board or the committee concerned, as the case may be, by the chairperson of the meeting to which the minutes relate or by the chairperson of the next following meeting, shall be accepted for all purposes as prima facie evidence of the proceedings of and decisions taken at the meeting concerned. (4) The chief executive officer of every public entity shall ensure that a copy of every resolution of the entity's board , signed by the chairperson of the meeting, is sent to the line Minister and the Unit without delay after it has been adopted." }, { "provision_ref": "s36", "chapter": "Part VII", "section": "36", "title": "Audit of accounts of public entities", "content": "36. Audit of accounts of public entities Subject to the Public Finance Management Act [Chapter 22:19] , the accounts of every public entity shall be audited annually by— (a) the Auditor-General; or (b) a person who is registered as a public auditor in terms of the Public Accountants and Auditors Act [Chapter 27:12] , appointed by the Auditor-General; and the Auditor-General or the public auditor, as the case may be, shall submit the audit report to the line Minister , the Minister responsible for finance and the Minister responsible for this Act, as well as to the board of the entity. Part VIII – General" }, { "provision_ref": "s37", "chapter": "Part VIII", "section": "37", "title": "Declaration of assets by board members and senior staff of public entities", "content": "37. Declaration of assets by board members and senior staff of public entities (1) In the interests of transparency and the avoidance of conflicts of interest, as soon as possible after being appointed or re-appointed (and in any event within three months after the appointment or re-appointment) as— (a) a member of the board of a public entity , every member of the board ; or (b) a senior staff member of a public entity , every senior staff member of a public entity ; shall provide the Office of the President and Cabinet with a written declaration listing in full— (c) all immovable property which the member or senior staff member owns, leases or in which he or she has any other interest; and (d) any item of movable property, exceeding one hundred thousand dollars ($100 000) or such greater value as may be prescribed, which the member or senior staff member owns, leases or in which he or she has any other interest; and (e) any business in which the member or senior staff member has an interest or which he or she plays any part in running; and (f) in relation to every associate of the member or senior staff member — (i) all immovable property owned or leased by the associate , or in which the associate has any other interest; and (ii) any item of movable property, exceeding one hundred thousand dollars ($100 000) or such greater value as may be prescribed, which the associate owns, leases or in which he or she has any other interest; and (iii) any business in which the associate has an interest or which he or she plays any part in running; and stating in each case the nature of the interest in the property or business concerned. (2) The part of the declaration referred to in subsection (1)(f) must either be countersigned by the associate concerned, or be endorsed in writing by the member or senior staff member concerned to be true to the best of his or her knowledge and belief. (3) In addition to the declaration required by subsection (1) , every member of the board of a public entity and every senior staff member shall provide the Office of the President and Cabinet with a further written declaration setting out the matters referred to in that subsection— (a) on the anniversary of his or her appointment or re-appointment to the board or to the post in question; and (b) within two months after ceasing to be a member of the board or ceasing to be a senior staff member . (4) If— (a) a member of the board of a public entity or senior staff member refuses to provide the Office of the President and Cabinet with any declaration required by subsection (1) or (3) ; or (b) a member of the board of a public entity or senior staff member thereof intentionally fails to list any property or interest in a declaration provided to the Office of the President and Cabinet in terms of subsection (1) or (3) ; or (c) any question arises as to the omission of any property or interest in a declaration provided to the Office of the President and Cabinet in terms of subsection (1) or (3) , whether in the course of the board 's or the entity's proceedings or otherwise, for the omission of which the responsible member of the board has no adequate explanation; the member or senior staff member shall thereupon cease to be a member of the board or (where the contravention relates to subsection (3)(b) ) be disqualified for reappointment, or, in the case of a senior staff member , cease to be employed in that or any other capacity in the entity concerned or (where the contravention relates to subsection (3)(b) ) be disqualified for re-employment." }, { "provision_ref": "s38", "chapter": "Part VIII", "section": "38", "title": "Responsibilities of State appointees to boards of certain public entities", "content": "38. Responsibilities of State appointees to boards of certain public entities Every appointee of the State to the board of a public entity referred to in paragraph (b), (c) or (d) of the definition of \" public entity \" in section 2 (1) has an obligation to act in the best interests of the State, that is to say— (a) to promote the State's interests and policies in relation to the business or operations of the entity and in accordance with any instructions given by the line Minister , and to solicit such instructions from the line Minister in appropriate cases; and (b) to act as a channel of two-way conmmnication between the line Minister and the entity concerned; and (c) at all times in the performance of his or her functions as the State's appointee— (i) to act honestly; and (ii) to exercise a reasonable degree of care and diligence; and (iii) to keep the responsible Minister fully and timeously informed of all matters affecting the State's interests in the course of the deliberations of the board of the entity concerned, and in relation to the business or operations of the entity." }, { "provision_ref": "s39", "chapter": "Part VIII", "section": "39", "title": "Implementing manuals", "content": "39. Implementing manuals (1) The Unit shall develop, update and make available to public entities one or more manuals in consultation with line Ministries to guide the implementation of this Act, including (but not limited to) the setting of performance management standards by the boards and staffs of public entities, the fonnulation by boards of strategic plans, board effectiveness, risk management, standard performance contracts for boards, standard forms and procedures, and the like. (2) Manuals may be specific to named sectors of the economy or the public domain in which public entities operate. (3) The Minister shall approve every manual for publication, whether as a statutory instrument or otherwise." }, { "provision_ref": "s40", "chapter": "Part VIII", "section": "40", "title": "Special investigations", "content": "40. Special investigations (1) If a line Minister considers it necessary or desirable to do so, the line Minister may by notice in the Gazette direct that a special investigation be conducted into such matters concerning the operations, dealings, affairs, membership, assets or liabilities of a public entity for which he or she is the responsible Minister, as may be specified in the notice. (2) A special investigation may take the form, or be inclusive of, a special or forensic audit of the public entity in question. (3) The line Minister may appoint one or more persons as special investigators, on such terms and conditions as the Minister may specify in the instrument of appointment, to conduct an investigation in terms of this section. (4) As soon as possible after appointing a special investigator, the line Minister shall notify the appointment in the Gazette . (5) The powers of a special investigator, and the procedure to be followed in a special investigation, shall be as prescribed in section 41 . (6) The line Minister shall give prior written notification of his or her intention to exercise any of his or her powers under this section to the head of the line Ministry , who shall thereupon promptly inform the head of the Unit of the imminent investigation. (7) A special investigation under this section may be conducted in parallel with or jointly with any other investigation into the affairs of the public entity concerned, whether under the Public Finance Management Act or other enactment: Provided that— (a) where the enabling instrument of a public entity makes provision for the special investigation of its affairs, this section shall prevail in a case where there is a possibility of concurrent investigations taking place; and (b) the President, on the recommendation of the Minister responsible for this Act, may give directions to the line Minister on the consolidation, co-ordination or co-operation of the work of investigators where concurrent investigations are undertaken into the entity concerned. (8) On completion of an investigation the special investigators shall report to the line Minister on what action, if any, is required to be taken to remedy any problems that prompted the investigation in the first place or any other problems revealed by the investigation. (9) The line Minister shall transmit a copy of the special investigator's report to the head of the line Ministry who shall thereupon promptly avail a copy of it to the head of the Unit , together with a plan of corrective action to be taken in relation to the investigated public entity in the light of the recommendations made by the special investigator or special investigators. (10) If the Minister responsible for this Act has reasonable cause to believe, on the basis of information availed to him or her by the unit or any other source, that any action or failure to take action in accordance with this section on the part of a line Minister is contrary to any principle of good corporate governance embodied in the First and Second Schedules, the Minister responsible for this Act shall seek the leave of the President to refer the matter to Cabinet, which may itself authorise a special investigation in terms of this section as if it were the line Minister ." }, { "provision_ref": "s41", "chapter": "Part VIII", "section": "41", "title": "Powers of special investigators", "content": "41. Powers of special investigators (1) For the purpose of a special investigation under section 40 a special investigator may require any person to produce for examination by the special investigator, at such time and place as may be appointed by the special investigator for that purpose, any deeds, plans, instruments, books, records, accounts, trade lists, stock lists or documents which the special investigator may consider necessary for the purposes of the special investigation. (2) Any deeds, plans, instruments, books, records, accounts, trade lists, stock lists or documents which in terms of subsection (1) are produced to a special investigator, may be retained by the special investigator for as long as they may be reasonably required for the special investigation. (3) Any person who, in terms of subsection (1) , produces any deed, plan, instrument, book, record, account, trade list, stock list or document which is not a ledger, cash-book, journal, paid cheque, bank statement, deposit slip, stock sheet, invoice or other book of account may be allowed by a special investigator any reasonable expenses necessarily incurred in producing it or obtaining and producing a copy of it. (4) A special investigator may in connection with a special investigation, by reasonable notice in writing, require any person whether on his or her own behalf or as the representative of any person, or any person whom the special investigator may consider able to furnish information, to attend at a time and place to be named by the special investigator for the purpose of being examined on oath or otherwise, at the discretion of the special investigator, respecting all transactions or any matters affecting the same, or any of them or any part of them, relevant to the special investigation. Any person so attending may be allowed by the special investigator any reasonable expenses necessarily incurred by such person in so attending. (5) Where any statement has been made by any person as a result of his or her being examined on oath under subsection (4) , such statement shall be recorded in writing and shall be read over to or by the person making it, who, after making such corrections therein as he or she may think necessary, may sign it. (6) Any person required to attend in terms of subsection (4) shall be entitled to be accompanied by a legal practitioner, accountant or other adviser, and any person making a statement in terms of subsections (4) and (5) shall be furnished with a copy thereof. (7) If any special investigator engaged in carrying out a special investigation, satisfies a magistrate by statement made on oath that there are reasonable grounds for suspecting that such person has comnitted an offence against this Act or any other law, the magistrate may by warrant authorise such special investigator and any other officers designated by the special investigator to exercise the following powers— (a) without previous notice, at any reasonable time during the day enter any premises whatsoever and on such premises search for any moneys, valuables, deeds, plans, instruments, books, records, accounts, trade lists, stock lists or documents; (b) in carrying out any such search, open or cause to be removed and opened any article in which he or she suspects any moneys, valuables, deeds, plans, instruments, books, records, accounts, trade lists, stock lists or documents to be contained; (c) seize any such deeds, plans, instruments, books, records, accounts, trade lists, stock lists or documents as in his opinion may afford evidence which may be material to the special investigation; (d) retain any such deeds, plans, instruments, books, records, accounts, trade lists, stock lists or documents for as long as they may be reasonably required for the special investigation or for any criminal or other proceedings. (8) Any special investigator engaged in carrying out the provisions of section 40 and this section may, if he or she has reasonable grounds for believing that it is necessary to do so for the purpose of the special investigation— (a) at any reasonable time during the day enter any business premises; or (b) require any person to produce for its inspection any book, record, statement, account, trade list, stock list or other document; or (c) require any person to prepare and additionally, or alternatively, to produce for inspection a print-out or other reproduction of any information stored in a computer or other information retrieval system; or (d) take possession of any document or other thing referred to in paragraph (b) or (c) for so long as may be necessary for the purpose of any examination, investigation, trial or inquiry; or (e) require any person reasonably suspected of having committed an offence against this Act or any other law or any person who may be able to supply information in connection with a suspected offence against this Act or any other law to give his or her name and address. (9) Any special investigator authorised in accordance with— (a) subsection (7) , when exercising any power under that subsection, shall on demand produce the warrant issued to him or her thereunder; or (b) subsection (8) , when exercising any power under that subsection, shall on demand produce proof that he or she is a special investigator. (10) Any person whose deeds, plans, instruments, books, records, accounts, trade lists, stock lists or documents have been retained in terms of subsection (2) or which have been seized or taken in terms of subsection (7) or (8) shall be entitled to examine and make extracts from them during office hours or such further hours as the special investigator may in his or her discretion allow and under such supervision as the special investigator may determine. (11) A special investigator is hereby empowered to administer oaths to persons examined in terms of this section. Any person who, after having been duly sworn, wilfully makes a false statement to the special investigator on any matter relevant to the inquiry, knowing such statement to be false or not knowing or believing it to be true, shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment. (12) Any person who— (a) falsely holds himself out to be a special investigator carrying out the provisions of section 40 or this section; or (b) hinders, obstructs or assaults a special investigator in the exercise of his or her functions in terms of section 40 or this section; or (c) wilfully fails to comply with any lawful demand made by a special investigator in the exercise of his or her functions in terms of section 40 or this section; shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment. (13) A special investigator may, in addition to the persons authorised to apply for a warrant under the Interception of Communications Act [Chapter 11:20] (No. 6 of 2007), have power to apply for a warrant under that Act." }, { "provision_ref": "s42", "chapter": "Part VIII", "section": "42", "title": "Notification of establishment and dissolution of public entities", "content": "42. Notification of establishment and dissolution of public entities (1) The head of a line Ministry shall notify the head of the Unit in writing within thirty days of— (a) the formation or establishment of a public entity otherwise than by Act of Parliament, and transmit together with such notification a copy of the relevant enabling instrument; (b) the dissolution of a public entity that is not established by an Act of Parliament, or that is dissolved otherwise than by the repeal of its constitutive Act of Parliament, and transmit together with such notification a copy of the relevant enabling instrument; (c) any amendment to the enabling instrument (not being an Act of Parliament) of a public entity , and transmit together with such notification a copy of the relevant amendment; (d) the particulars of any material change of the ownership or control of a public entity that is not reflected in any amendment of the enabling instrument thereof: Provided that any question as to whether any such change is \"material\" shall be referred by the head of the line Ministry to the head of the Unit for determination. (2) Within sixty days of the fixed date , every head of a line Ministry shall comply with subsection (1) with respect to any existing public entity referred to in paragraphs (a) to (d) ." }, { "provision_ref": "s43", "chapter": "Part VIII", "section": "43", "title": "Exemptions", "content": "43. Exemptions (1) The Minister may by notice in writing to the public entity concerned, exempt the entity from any provision of this Act, where the Minister is satisfied, on the basis of representations from the line Minister , that there are compelling reasons for the exemption in view of— (a) the nature or size of the entity; or (b) any unusual difficulty the entity may encounter in complying with the provision; and may in similar fashion amend or withdraw any such exemption: Provided that the line Minister and Minister shall together, no later than thirty days after the end of the financial year of the public entity in question in which the exemption was granted, review the necessity for continuing the exemption and, if needed, amend or withdraw it. (2) The reason, nature and extent of every exemption in favour of a public entity must be notified in the annual report of the entity immediately following the grant of the exemption. (3) The head of the Unit shall ensure that a list of all exemptions granted in terms of subsection (1) , specifying their terms and conditions and the reason why they were granted, is kept at the Unit 's offices where it may be inspected by members of the public at all reasonable times during the Unit 's business hours. In addition, the list of exemptions shall be kept available in electronic form for inspection by members of the public on the website of the Unit ." }, { "provision_ref": "s44", "chapter": "Part VIII", "section": "44", "title": "Regulations", "content": "44. Regulations (1) Subject to subsection (3) , the Minister may by regulation prescribe anything which by this Act is required or permitted to be prescribed or which, in his or her opinion, is necessary or convenient to be prescribed in order to give effect to this Act. (2) Without derogating from the generality of subsection (1) , regulations made in terms of subsection (1) may provide for— (a) induction programmes and programmes to enhance the efficiency and effectiveness of board members; (b) the standard remuneration for civil servants serving as board members; (c) the establishment of one or more directories or databases of potential candidates for appointment to boards; (d) the qualifications and experience required for appointment as a senior staff member of any public entity or class of public entities, and the procedures to be followed in such appointments; (e) measures, including training programmes, to enhance the efficiency and effectiveness of senior staff members of public entities; (f) the disclosure of remuneration, allowances and benefits paid to board members and senior staff members of public entities; (g) the recovery of amounts paid unlawfully by public entities to their board members and senior staff members; (h) the establishment of committees by boards of public entities and the responsibilities and functions of such committees; (i) reports to be submitted by boards or chief executive officers of public entities to the Unit or to their line Ministers; (j) the stakeholders or classes of stakeholders that may be invited to annual general meetings for the pmpose of section 33 (3)(f); (k) measures for safeguarding the confidentiality of, and securing authorised access to, declarations of assets by board members and senior staff of public entities; (l) the circumstances in which the Secretary to the Treasury is empowered to recover by means of a surcharge raised under the Third Schedule from a public entity or from persons who are in the employment of a public entity , or are members of its board , or who were in such employment or were such members, any public resources (as defined in that Schedule) that have been misused, lost or destroyed by the public entity or its employees, agents or board members; (m) the regular rating of public entities for their corporate governance and the publication of such ratings and the criteria by which the entities are rated; (n) penalties for contraventions of the regulations: Provided that no such penalty shall exceed a fine of level fourteen or imprisonment for a period of five years or both such fine and such imprisonment. (3) Before making regulations in terms of subsection (1) the Minister shall consult all line Ministers whose public entities will be affected by the regulations." }, { "provision_ref": "s45", "chapter": "Part VIII", "section": "45", "title": "Amendment of First and Second Schedules", "content": "45. Amendment of First and Second Schedules (1) Subject to subsection (2) , the Minister may by statutory instrument amend— (a) the First Schedule in order to reflect any changes made to the National Code of Corporate Governance Zimbabwe, and in so doing may, after consultation with line Ministers, specify that any part of the Code (as amended or not) shall be binding on public entities or any class thereof as if enacted by way of regulations; (b) the Second Schedule in order to— (i) extend the application or improve the efficacy of codes of good governance; or (ii) give effect to generally accepted standards of good corporate governance. (2) The Minister shall not publish a statutory instrument in terms of subsection (1) unless— (a) he or she has given not less than two months' notice in the Gazette and in one or more newspapers circulating generally in Zimbabwe, of the substance of the proposed amendment and has paid due regard to any comments and suggestions he or she may have received from members of the public regarding the proposal; and (b) the National Assembly has passed a resolution approving the amendment." }, { "provision_ref": "s46", "chapter": "Part VIII", "section": "46", "title": "Savings and transitional provisions", "content": "46. Savings and transitional provisions (1) Within two months after the fixed date , the chief executive officer of every public entity shall provide the Unit , in writing, with the following particulars— (a) in regard to all the members of the entity's board — (i) their names and addresses; and (ii) which of them are executive members and which are independent members; and (iii) the dates on which they were first appointed to the board and the dates on which their current terms of office expire; and (iv) their terms and conditions of service, in particular their current remuneration, allowances and benefits; (b) in regard to himself or herself and employees of the entity concerned holding office on the next two levels of management below the level of chief executive officer — (i) their names and addresses; and (ii) the dates on which they were first appointed to their current positions and, where applicable, the dates on which their current terms of office expire; and (iii) their terms and conditions of service, in particular their current remuneration, allowances and benefits; and the line minister shall ensure compliance with this subsection. (2) The term of office of a person who, on the fixed date , was a board member, chief executive officer or senior staff member of a public entity shall not be renewed or extended— (a) except on terms and conditions compatible with this Act; or (b) in the case of a board member, unless his or her continuation in office would be consistent with section 11 (\"Appointment of boards of public entities\"); or (c) in the case of a chief executive officer , unless his or her continuation in office would be consistent with section 11 (\"Appointment of chief executive officers of public entities\"); or (d) in the case of a senior staff member other than a chief executive officer , unless his or her continuation in office would be consistent with section 18 (Appointment of senior staff of public entities\"). (3) Where, on the commencement date, a person holds office as chief executive officer of a public entity and has held that office— (a) for more than ten years, his or her term of office shall end six months after the fixed date unless— (i) under his or her service conditions it ends sooner; or (ii) the board , with the approval of the line Minister , appoints him or her for one more term of office, which term begins on the date of the re-appointment; (b) for less than five years, his or her term of office shall end five years after his or her initial appointment, unless under his or her service conditions it ends sooner. (4) Notwithstanding any other enactment or anything in the conditions of service of the member concerned, a head of a Ministry who, on the fixed date , was a board member of a public entity may continue to serve as a member for two months after the fixed date , after which, if he or she is still the head of the Ministry, he or she shall cease to be a member. (5) Within six months after the fixed date , the board of every public entity shall— (a) draw up a strategic plan for the entity in accordance with section 22 (\"Strategic plans of public entities\"); and (b) enter into performance contracts with the chief executive officer and all senior staff members of the entity in accordance with section 23 (\"Performance contracts with senior staff of public entities\"). (6) Every member of the board of a public entity or senior staff member thereof in office or employed on the fixed date shall provide the Office of the President and Cabinet with the written declaration referred to in section 37 (1) within two months of the fixed date (and sections 37 (2) and (3) apply to that member accordingly) unless the member has earlier ceased to be a member for any reason. (7) Within six months after the fixed date , the responsible Minister of every public entity shall enter into performance contracts with the members of the entity's board in accordance with section 25 (\"Performance contracts with board members of public entities\"). (8) A person who— (a) provides the Office of the President and Cabinet or an officer of the Unit with false information for the purpose of subsection (1)(b) , knowing it to be false or having no reasonable grounds for believing it to be true; or (b) without just cause, fails or refuses to answer any question or provide any information or produce any document when required to do so in terms of subsection (1)(b) ; shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment. First Schedule (Sections 21, 31 and 45) National Code on Corporate Governance Zimbabwe Chapter I Application of the Code and derivatives 1. This Code applies to all business entities regardless of the manner and form of their incorporation or establishment and whether the business entity is in the public or private sector or it is non-profit making. There are however certain entities which require a sector approach to corporate governance. Accordingly, codes which derive from the main principles of this Code are encouraged and should be developed. 2. Special sectors, such as the banking and financial services sector, partnerships, trusts and small to medium enterprises, should have specific codes of their own which take a sector approach to corporate governance. 3. The sector-based codes supplement and add value to, and should be read together with, this Code. 4. If a provision of a sector-based code is inconsistent with any principle of this Code then the principle of this Code prevails to the extent of that inconsistency. 5. Small to medium businesses, including family-owned businesses, constitute a special sector which requires special focus. Accordingly special principles and best practice recommendations for this sector should incorporate the provisions of the current legislation on small to medium enterprises and lift the bar on corporate governance above that prescribed in legislation. 6. The public sector has its own framework of governance which has been in existence since November 2010. It is recommended that most of the provisions of this framework should be enacted into law so as to ensure its enforcement. In regard to this sector the enactment into law of the framework will be a shift from the \"comply or explain\" basis of corporate governance to the \"comply or else\" strategy. 7. Other sectors deserving special consideration will be considered as part of a review of this Code or any derivative code. Part II – Ownership and control Preamble 8. In a company, shareholders provide risk capital which the management controls under the leadership of a Board of Directors. There must be a functional balance of power among these three groups for the company to prosper and for all the stakeholders to derive benefit. Ownership Principles 9. Corporate power should not be concentrated in one person or in a small group of persons because this will impact negatively on focused, effective and ethical corporate leadership and may result in corporate failure. 10. Corporate power, represented by the right to vote on a one share one vote basis, must always be aligned with economic rights. Any misalignment must be justified and be approved by the shareholders. Recommendations 11. The right to vote should be extended to all shareholders. 12. Full, timely and transparent disclosure should be made in the annual reports regarding the exercise of corporate power. 13. The Board, the managers and the majority shareholder must respect the rights of minority shareholders. Control Principles 14. The ultimate authority of any company is its annual general meeting or extraordinary general meeting of shareholders, where they exercise their rights in terms of the statutes of the company and the law. 15. Shareholders in general meeting have the power to make business decisions concerning the company and to take any action which they dee" } ], "definitions": [ { "term": "annual general meeting", "definition": ", in relation to a public entity , means an annual meeting of the stakeholders of the entity referred to in section 33 (3)", "source_provision": "s2" }, { "term": "associate", "definition": ", in relation to a person, has the meaning given to it by subsections (5) , (6) and (7)", "source_provision": "s2" }, { "term": "board", "definition": ", in relation to a public entity , means the members of the governing body of the entity, by whatever name called, holding positions comparable to those of the directors of a company", "source_provision": "s2" }, { "term": "board charter", "definition": "is the document which, in addition to outlining the mission and values of the public entity for which a board is responsible, sets forth how board members will discharge their duties and the standards of conduct to which they will be held in that capacity", "source_provision": "s2" }, { "term": "board member representing minority interests", "definition": ", in relation to a company or other entity which is government-controlled but in which one or more other persons have interests, means a member of the entity's board representing those other persons", "source_provision": "s2" }, { "term": "chief executive officer", "definition": ", in relation to a public entity , means the person who, either alone or jointly with one or more other persons, is responsible under the direct authority of the entity's board for the conduct of the entity's activities", "source_provision": "s2" }, { "term": "code of ethics", "definition": ", in relation to a public entity , is the document outlining the mission and values of the public entity , how employees of the entity are supposed to discharge their duties and resolve problems consistently with the entity's values, and the standards of conduct to which employees will be held towards each other and the public in their capacity as employees", "source_provision": "s2" }, { "term": "constitutional Commission", "definition": "means a Commission established by the Constitution", "source_provision": "s2" }, { "term": "executive member", "definition": ", means a member of the board who is employed by the entity in a managerial or teclmical capacity", "source_provision": "s2" }, { "term": "fixed date", "definition": "means the date fixed in terms of section 1 (2) as the date of commencement of this Act", "source_provision": "s2" }, { "term": "Good Corporate Governance Code", "definition": "means the National Code on Corporate Governance set forth in the First Schedule", "source_provision": "s2" }, { "term": "head of the line Ministry", "definition": "means the Secretary of the line Ministry", "source_provision": "s2" }, { "term": "head of the Unit", "definition": "means the head of the Unit referred to in section 5 (2)", "source_provision": "s2" }, { "term": "independent member", "definition": ", in relation to the board of a public entity , means a board member who does not have a pecuniary or material relationship with the entity or an associated person of the entity", "source_provision": "s2" }, { "term": "Minister", "definition": "means the Minister or Vice-President to whom the President may, from time to time, assign the administration of this Act", "source_provision": "s2" }, { "term": "near relative", "definition": ", in relation to a member of a board of a public entity or senior staff member of a public entity , means the member's spouse, child, parent, brother or sister", "source_provision": "s2" }, { "term": "non-executive member", "definition": "means a member of the board who does not hold a salaried office in the entity, whether or not he or she is an independent member", "source_provision": "s2" }, { "term": "performance contract", "definition": "means a performance contract entered into in terms of Part V with a board member of a public entity or with a senior staff member of such an entity", "source_provision": "s2" }, { "term": "public commercial entity", "definition": "means a company or other commercial entity which is owned or controlled by the State or by a person on behalf of the State", "source_provision": "s2" }, { "term": "regulatory entity", "definition": "means a public entity established to regulate or supervise a particular area of activity in the public interest", "source_provision": "s2" }, { "term": "Secretary", "definition": "means the Secretary of the Ministry, or head of the Department or Office, as the case may be, for which the Minister is responsible", "source_provision": "s2" }, { "term": "senior staff member", "definition": ", in relation to a public entity , means the entity's chief executive officer and such other members of its staff as may be prescribed or as may be specified by the Unit by written notice to the entity concerned", "source_provision": "s2" }, { "term": "strategic plan", "definition": "means a strategic plan of a public entity drawn up in terms of section 22", "source_provision": "s2" }, { "term": "enabling instrument", "definition": ", with reference to any public entity , means the instrument (whether or not embodied in a single document) that establishes the entity and governs its functions, powers and procedure, and with reference to— (a) a constitutional Commission , includes the Constitution and any enactment governing the Commission's functions and procedure; (b) a statutory body other than a constitutional Commission , means the enactment by or under which that body is established; (c) a company, means the memorandum and articles of association or other foundational document establishing the company that is filed with the Companies Registry in accordance with Companies Act [Chapter 24:03] ; (d) an entity established under an agreement for a partnership or joint venture between the State and any other person, which entity is declared in terms of subsection (2) to be a public entity , means the agreement establishing that entity; (e) an entity declared in terms of subsection (2) to be a public entity other than one described in the foregoing paragraphs, means the operative, constitutive or foundational document of that entity", "source_provision": "s2" }, { "term": "line Minister", "definition": ", in relation to— (a) a constitutional Commission , means the Minister or Vice-President responsible for the administration of the Act setting out the Commission's functions and additionally, or alternatively, its procedures; (b) a statutory body , means the Minister or Vice-President responsible for the administration of the Act governing the establishment of the body; (c) a public entity other than a constitutional Commission or a statutory body — (i) means the Minister or Vice-President who on behalf of the State holds the shares in or otherwise exercises control over the entity; or (ii) where a public officer other than a Minister or Vice-President holds on behalf of the State the shares in or otherwise exercises control over the entity, means, the Minister or Vice-President responsible for the administration of the enabling instrument under which the public officer exercises his or her functions", "source_provision": "s2" }, { "term": "public entity", "definition": "means an entity whose operations or activities are substantially controlled by the State or by a person on behalf of the State, whether through ownership of a majority of shares in the entity or otherwise, and includes— (a) a statutory body ; and (b) a public commercial entity ; and (c) an entity established under an agreement for a partnership or joint venture between the State and any other person, which entity declared in terms of subsection (2) to be a public entity ; and (d) any subsidiary of an entity referred to in paragraph (a) , (b) or (c)", "source_provision": "s2" }, { "term": "statutory body", "definition": "means— (a) a constitutional Commission ; or (b) a— (i) body corporate established directly by or under an Act for special purposes specified in that Act; or (ii) board , committee or similar entity which is established directly by an Act for special purposes specified in that Act; whose members consist wholly or mainly of persons appointed by the President, a Vice-President, a Minister , a Deputy Minister , another statutory body or by a constitutional Commission", "source_provision": "s2" } ] }