THE INSOLVENCYBILL, 2013 MEMORANDUM

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1 THE INSOLVENCYBILL, 2013 MEMORANDUM The objects of this Bill are to- (a) consolidate the law relating to bankruptcy, insolvency, receiverships, provisional supervision and winding up; (b) provide for corporate and individual insolvency; (c) provide for the rehabilitation of an insolvent debtor; (d) repeal the Bankruptcy Act, 1967; and (e) provide for matters connected with, or incidental to, the foregoing., MUMBA MALILA, S.C., Attorney-General

2 THE INSOLVENCY BILL, 2013 ARRANGEMENT OF SECTIONS Section PART I PRELIMINARY 1. Short title and commencement 2. Interpretation 3. Application PART II OFFICIAL RECEIVER, TRUSTEES IN BANKRUPTCY AND INSOLVENCY PRACTITIONERS 4. Appointment of Official Receiver and other staff 5. Trustees in bankruptcy 6. Appointment of trustee by court 7. Insolvency practitioner 8. Application to act as insolvency practitioner 9. Recognised professional bodies PART III NATURE OF BANKRUPTCY AND RELATED PROCESSES 10. Nature of bankruptcy 11. Alternatives to bankruptcy 12. Adjudication and declaration Court Adjudication on Application of Creditor 13. Application for adjudication of debtor by creditor 14. Application by secured creditor 15. Requirement of act of bankruptcy Acts of Bankruptcy 16. Acts of bankruptcy 17. Disposition of property to trustee for benefit of creditors 18. Fraud or intent to prefer creditor 19. Departure from Zambia 20. Avoidance of creditors 2

3 21. Notice of suspension of payment of debts 22. Admission of insolvency to creditors 23. Possession under execution process 24. Sale order 25. Return that sufficient goods not found under execution process 26. Removal or concealment of property 27. Unsatisfied judgment for non-payment of trust money Bankruptcy notice 28. Form of bankruptcy notice 29. Effect of overstating amount owed by debtor Effect of Creditor s Application on Execution Process 30. Restriction on creditor s issuance or continuation of execution process 31. Execution processes by other creditors 32. Execution process issued by another court 33. No restriction on execution process if application for adjudication withdrawn or dismissed Court s Options on Creditor s Application 34. Court not to adjudicate debtor bankrupt in certain cases 35. Court may stop creditor s application for adjudication 36. Orders if more than one application for adjudication 37. Order where disposition of property or proposal not act of bankruptcy 38. Order where bankruptcy notice or judgment appealed against 39. Application for adjudication while determining underlying debt 40. Substitution of creditor Debtor s application 41. Debtor s application for adjudication 42. Declaration by Official Receiver 43. Joint application of debtors PART IV APPOINTMENT OF RECEIVER AS TRUSTEE Power of Court to appoint trustee as receiver 44. Application for appointment of trustee as receiver and manager of property 45. Advertisement of appointment of trustee as receiver and manager 46. Restriction on execution process after advertisement of appointment 3

4 Adjudication and Declaration 47. Commencement of bankruptcy 48. Date of adjudication and declaration 49. Recording date and time of adjudication and declaration 50. Notification of adjudication by court 51. Official Receiver to nominate trustee 52. Presumption that act or transaction entered into or effected after adjudication or declaration 53. Adjudication and declaration final and binding 54. Responsibilities of trustee and bankrupt on adjudication or declaration 55. Restriction on advertisement of adjudication of bankruptcy 56. Statement of debtor s affairs 57. First meeting of creditors 58. Time of holding meeting 59. Trustee may dispense with meeting of creditors Cessation of Court proceedings 60. Effect of adjudication on court proceedings 61. Effect of death of bankrupt after adjudication 62. Right of creditor in bankruptcy Meetings of creditors 63. Meetings of creditors 64. Lack of notice for meeting 65. Chairperson of meeting of creditors 66. Proceedings of meetings of creditors 67. Attendance of meeting of creditors 68. Quorum 69. Representative of creditor or bankrupt at meeting of creditors 70. Attendance of meeting by non-creditors 71. Minutes 72. Voting at meeting of creditors 73. Postal votes 74. Disqualification from voting 75. Creditor of partner 76. Appointment of expert or committee to assist trustee 77. Inspection of documents by creditor Property of bankrupt on Adjudication or Declaration 4

5 78. Status of property on adjudication or declaration, and status of property acquired during bankruptcy 79. Property held in trust by bankrupt 80. Money due to bankrupt 81. Payments by bankrupt or assignments by court 82. Retention of execution proceeds by execution creditor 83. Effect of notice of adjudication to bailiff 84. Retention of proceeds of execution by bailiff 85. Purchaser under sale by bailiff acquires good title 86. Setting aside rights conferred on trustee 87. Transaction in good faith and for value after adjudication 88. Execution and attachments in good faith 89. Completion of execution or attachment 90. Interest of trustee in property passes to effect transaction Disclaimer of Onerous Property 91. Disclaimer of onerous property 92. Effect of disclaimer 93. Position of person who suffers loss due to disclaimer 94. Loss of right to disclaim onerous property 95. Liability for rent charge on land of bankrupt after disclaimer 96. Transmission of interest in land 97. Prohibition of claim of interest in land after discharge Shares and Securities 98. Transfer of shares and securities 99. Disclaimer of liability under shares 100. Transfer of shares after disclaimer 101. Proof for unpaid calls Goods on Hire Purchase 102. Meaning of hire purchase terms 103. Restrictions on creditor dealing with goods purchased before adjudication or declaration of bankruptcy 104. Hire-purchase agreement binding on trustee 105. Powers of trustee in relation to hire-purchase goods 106. Proof in bankruptcy by creditor in possession of goods 107. Assignment of goods by creditor in possession Second Bankruptcy 5

6 108. Status of property of bankrupt on second bankruptcy 109. Effect of notice of application for second adjudication Duties of Bankrupt 110. General duties of bankrupt 111. Delivery of property to trustee 112. Information relating to property 113. Information relating to income and expenditure 114. Contribution to payment of debts 115. Prohibition of bankrupt entering business 116. Warrant to search for and seize property of bankrupt 117. Vacation of land or building by bankrupt 118. Inspection of documents by bankrupt 119. Notification of change in personal information Restrictions on Bankrupt dealing with Property 120. Restriction on dealing with property 121. Prohibition of defeating beneficial interest in property 122. Notification of bankrupt account 123. Retention of personal assets Examination of Bankrupt and Others 124. Summoning of bankrupt and others for examination 125. Prohibition of publication of report of examination 126. No lien over documents and other records of bankrupt 127. Public examination of bankrupt 128. Notice of examination 129. Holding of examination 130. Record of examination 131. End of examination Investigation of Company controlled by Bankrupt and Associate 132. Examination of books and shareholders of bankrupt s company 133. No privilege against self-incrimination 134. Inadmissibility of statement made by examined person Status of Bankrupt s Contracts Entered into before Adjudication 6

7 135. Continuation or disclaimer of bankrupt s contract 136. Termination of contract by other contracting party 137. Payment of money or delivery of property is good discharge 138. Contractor of bankrupt 139. Advocates costs Irregular Transactions before Adjudication or Declaration of Bankruptcy 140. Application of division 141. Insolvent transactions 142. Transactions to be treated as single transactions 143. Insolvency security 144. Security for new consideration 145. Security for unpaid purchase price given after sale of property 146. Appropriation of payments by bankrupt to security holder 147. Insolvent gift 148. Procedure for cancelling irregular transactions 149. Re-transfer of property or payment of value 150. Limits on recovery Transactions at Undervalue 151. Recovery of value received under transaction 152. Recovery of contribution of bankrupt 153. Use of repayment of contribution PART V END OF BANKRUPTCY Discharge 154. Automatic discharge 155. Effect of automatic discharge 156. Objection to automatic discharge 157. Application for discharge by bankrupt 158. Examination of bankrupt concerning discharge 159. Report of Official Receiver 160. Notice of opposition to discharge 161. Grant or refusal of discharge 162. Restriction of bankrupt from engaging in business after discharge 163. Reversal of order of discharge 164. Grounds for reversing discharge 165. Effect of reversal of discharge 7

8 166. Application for absolute discharge 167. Debts from which bankrupt is released on discharge 168. Discharge conclusive evidence of bankruptcy 169. Discharge does not release partners and others 170. Duty of discharged bankrupt 171. Publication of information regarding bankrupt s discharge Annulment of adjudication 172. Annulment of adjudication 173. Annulment of adjudication by trustee 174. Effect of annulment PART VI INDIVIDUAL COMPOSITIONS, PROPOSALS, SUMMARY INSTALMENT ORDERS AND NO ASSET PROCEDURE Composition during Bankruptcy 175. Composition 176. Composition with members of partnership 177. Approval of composition by court 178. Procedure for court approval of composition 179. Deed of composition 180. Effect of deed 181. Liability for unpaid balances of certain debts 182. Deadlines for steps to approve composition and execute deed 183. Procedure following court approval 184. Enforcement of composition 185. Exclusive jurisdiction of court 186. Meaning of debt and insolvent 187. Proposal by insolvent 188. Filing of proposal 189. Provisional trustee 190. Meeting of creditors 191. Procedure at meeting of creditors 192. Approval of proposal by court 193. Effect of court approval 194. Restrictions on enforcement steps 195. Duties of insolvent and trustee 196. Summary of receipts and payments 197. Cancellation or variation of proposal Individual Proposals 8

9 Summary Instalment Order 198. Meaning of summary installment order 199. Application for summary instalment order 200. Summary instalment order 201. Additional orders 202. Appointment of supervisor 203. Role of supervisor 204. Period of installments 205. Variation or discharge of order 206. Effect of order 207. Proceedings against debtor 208. Proof of debt 209. Payment of debtor s earnings to supervisor 210. Distribution of money paid by debtor 211. Default by debtor 212. Offence of obtaining credit Entry to No Asset Procedure 213. Application for entry to no asset procedure 214. Criteria for entry to no asset procedure 215. Advertisement of application and notification of creditors 216. Admission to no asset procedure 217. Restriction on enforcement of debts by creditors 218. Debtor s duties after entry to no asset procedure 219. Termination of no asset procedure 220. Effect of termination 221. Discharge PART VII BANKRUPTCY OFFENCES 222. Application of Part 223. Defence of innocent intention 224. Non-disclosure 225. Concealment of property 226. Concealment of books and papers 227. False statement 228. Fraudulent disposal of property 229. Absconding 230. Fraudulent dealing with property obtained on credit 231. Obtaining credit and engaging in business 232. Failure to keep proper accounts of business 233. Gambling 9

10 PART VIII RECEIVERSHIP AND MANAGERS 234. Application of Division 235. Appointment of receiver by court 236. Notification of appointment of receiver 237. Statement of company s affairs 238. Payment of preferred creditors 239. Eligibility for appointment as receiver 240. Remuneration or receiver 241. Receivers appointed by court 242. Receivers appointed otherwise than by court 243. Liabilities of receivers on contracts 244. Effect of appointment of receiver 245. Receiver s duty to manage assets before sale 246. Statement of affairs and accounts where receiver of undertaking appointed 247. Accounts of receivers 248. Report by receivers 249. Vacation of office of receiver PART IX BUSINESS RESCUE AND COMPROMISE WITH CREDITORS Division 1 Business rescue proceedings 250. Application and definitions 251. Company resolution to begin business rescue proceedings 252. Objections to company resolution 253. Court order to begin business rescue proceedings 254. Duration of business rescue proceedings 255. General moratorium on legal proceedings against company 256. Protection of property interests 257. Post-commencement finance 258. Effect of business rescue on employees and contracts 259. Effect on shareholders and directors Division II Practitioner s Functions and Terms of Appointment 260. Qualifications of practitioners 261. Removal and replacement of practitioner 10

11 262. General powers and duties of practitioners 263. Investigation of affairs of company 264. Directors of company to co-operate with and assist practitioner 265. Remuneration of practitioner Division III Rights of Affected Persons during Business Rescue Proceedings 266. Rights of employees 267. Participation by creditors 268. Participation by holders of company s securities 269. First meeting of creditors 270. First meeting of employees representatives 271. Functions, duties and membership of committees of Creditors and Employees 272. Proposal of business rescue plan 273. Meeting to determine future of company 274. Consideration of business rescue plan 275. Failure to adopt business rescue plan 276. Discharge of debts and claims Division IV Development and Approval of Business Rescue Plan Division V Compromise with Creditors 277. Compromise between company and creditors PART X WINDING-UP 278. Interpretation 279. Modes of winding-up 280. Liability of members on winding-up 281. Limitation of liability 282. Nature of liability of a member 283. Liability on death of bankruptcy of member 284. Jurisdiction to wind-up companies 285. Application of Division Winding-up by the Court 11

12 286. Petition to wind-up company 287. Circumstances in which company may be wound-up by court 288. Commencement of winding-up by court 289. Payment of preliminary 290. Powers of court on hearing petition 291. Power to stay or restrain proceedings against company 292. Avoidance of dispositions 293. Avoidance of attachments 294. Registration of copy of order 295. Provisional liquidator 296. Stay of actions 297. Appointment and style of liquidator 298. Appointment of person other than Official Receiver as liquidator 299. Control of liquidators by Official Receiver 300. Remuneration of liquidators 301. Custody and vesting of company s property 302. Statement of company s affairs 303. Report by liquidator 304. Powers of liquidator 305. Exercise and control of liquidator s powers 306. Release of liquidator and dissolution of company 307. Orders for release or dissolution 308. Dissolution of company 309. Meeting for appointment of committee of inspection 310. Constitution and proceedings of committee of inspection 311. Power to stay winding-up 312. Appointment of special manager 313. Claims of creditors and distribution of assets 314. Inspection of books by creditors and members 315. Power to summon persons connected with company 316. Power to order public examination 317. Power to arrest absconding member or officer 318. Powers of court cumulative 319. Voluntary winding-up 320. Voluntary winding-up 321. Commencement of voluntary winding-up 322. Effect of voluntary winding-up 323. Declaration of solvency Provisions applicable only to members voluntary winding-up 324. Provisions applicable only to members voluntary winding-up 325. Appointment of liquidator 326. Duty of liquidator to call creditors 12

13 327. Staying of members voluntary winding-up Provisions applicable only to creditors voluntary winding-up 328. Provisions applicable only to creditors voluntary winding-up 329. Meetings of creditors 330. Appointment of committee of inspection 331. Fixing of liquidators remuneration and vesting of directors powers in liquidator 332. Stay of proceedings Provisions applicable to every voluntary winding-up 333. Provisions applicable to every voluntary winding-up 334. Distribution of property of company 335. Review by court of liquidator s appointment and remuneration 336. Powers and duties of liquidators 337. Power to liquidator to accept shares, etc., as consideration for sale of property of company 338. Annual meeting of members and creditors 339. Final meeting and dissolution of company 340. When an arrangement is binding on creditors 341. Application to court to have questions determined or powers exercised 342. Costs 343. Limitation on right to wind-up voluntary Provisions applicable to every mode of winding-up 344. Provisions applicable to every mode of winding-up 345. Meetings of creditors 346. Conduct of meetings of creditors 347. Eligibility for appointment as liquidator 348. Acts of liquidator valid 349. General provisions as to liquidators 350. Powers of official receiver where no committee of inspection 351. Appeal against decision of liquidator 352. Notice of appointment and address 353. Liquidator s accounts 354. Notification that a company is in liquidation 355. Books of company 356. Investment of surplus funds 357. Unclaimed assets 358. Expenses of winding-up where assets insufficient 359. Meetings to ascertain wishes of members or creditors 360. Proof of debts 361. Preferential debts 13

14 362. Remuneration of liquidator 363. Avoidance of preference 364. Avoidance of floating charge 365. Liquidator s right to recover in respect of certain sales to or by company 366. Disclaimer of onerous property 367. Restriction of rights of creditor as to execution or attachment 368. Duties of sheriff as to goods in execution 369. Offences by officers of companies in liquidation 370. Inducement to be appointed liquidator 371. Penalty for falsification of books 372. Liability where proper accounts not kept 373. Liability for contracting debt 374. Power of court to assess damage against delinquent officers 375. Prosecution of delinquent officer and members 376. Frauds by officers of companies which have gone into liquidation Dissolution of defunct companies 377. Power of Registrar to strike defunct company off register 378. Power of court to declare dissolution of company void 379. Registrar to act as representative of defunct company in certain events Winding-up of other bodies corporate 380. Winding-up of other Zambian bodies corporate 381. Winding-up of other foreign bodies corporate PART XI SCHEMES OF ARRANGEMENT, TAKE-OVERS AND THE PROTECTION OF MINORITIES 382. Power to compromise with creditors and members 383. Information as to compromises with creditors and members 384. Reconstruction and amalgamation of companies 385. Power to acquire shares of minority on take-over 386. Rights of minority on take-over 387. Remedy against oppression 14

15 PART XII OFFENCES AND PENALTIES 382. Offences by officers of companies in liquidation 383. Inducement to by appointed liquidator 384. Penalty for destruction, falsification, etc, of books 385. Liability where proper accounts not kept 386. Responsibility for fraudulent trading 387. General penalty 388. Cross border insolvency 389. Regulations 390. Repeal of Cap PART XIII GENERAL PROVISIONS A BILL ENTITLED An Act to consolidate the law relating to bankruptcy, insolvency, receiverships, provisional supervision and winding up; provide for corporate and individual insolvency; provide for the rehabilitation of an insolvent debtor; repeal the Bankruptcy Act, 1967; and provide for matters connected with, or incidental to, the foregoing. Enactment ENACTED by the Parliament of Zambia. PART I PRELIMINARY Short title and commencement Act No. of This Act may be cited as the Insolvency, Act, 2013, and shall come into operation when the Companies Act, 2013, comes into operation. 15

16 Interpretation 2. (1) In this Act, unless the context otherwise requires- accounting records includes- (a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry; and (b) such working papers and other documents as are necessary to explain the methods and calculations by which the accounts are made up; accounts means profit and loss accounts and balance sheets together with any statements, reports and notes attached to or intended to be read with any of those profit and loss accounts or balance sheets; adjudication means a process whereby a debtor is adjudicated bankrupt; annual accounts means- (a) a profit and loss account for the financial year just ended, being a profit and loss account that gives a true and fair view of the profit or loss of the company for that financial year; (b) a balance sheet as at the end of the financial year just ended, being a balance sheet that gives a true and fair view of the state of affairs of the company as at the end of that financial year; and 16

17 (c) group accounts, if the company is a company required to provide group accounts, dealing with- (i) the profit or loss of the company and its subsidiaries for their respective financial years most recently ended, giving a true and fair view of the profit or loss; and (ii) the state of affairs of the company and its subsidiaries as at the end of their respective financial years most recently ended, giving a true and fair view of the state of affairs so far as it concerns members of the holding company; associate in relation to- (a) a company, means (i) its holding company or its subsidiary; (ii) a subsidiary of its holding company; (iii) a holding company of its subsidiary; (iv) a person who controls the company or body corporate, whether alone or with that person s associates or with other associates of the company; and (v) any company in which an individual is a director; and (b) an individual, means- (i) a relative of the individual; 17

18 Act No. 13 of 2008 Cap. 37 Cap. 385 (ii) a company or other body corporate controlled, directly or indirectly, by that individual, whether alone or with the associates of the individual; and (iii) an associate of the associates of the individual; auditor means a person holding a practicing certificate or a firm registered under the Accountants Act and appointed to perform any auditing functions; bailiff includes an officer, appointed under the Sheriffs Act, who is charged with the execution of a unit or other process; bank has the meaning assigned to it in the Banking and Financial Services Act; book includes any document or data maintained or processed manually, mechanically, photographically or electronically by any information storage device; business includes a trade and profession; charge means a charge created in any way and includes- (a) mortgage; (b) an agreement to give or execute a charge or mortgage whether on demand or otherwise; and (c) until such time as the whole of the purchase price is paid, an agreement for sale and purchase of land under which the seller remains in occupation; 18

19 Act No....of company has the meaning assigned to it in the Companies Act, 2013; court means the High Court for Zambia; creditor includes a person entitled to enforce a final judgment or final order; creditors voluntary winding-up means a voluntary winding-up with respect to which no declaration of solvency was made in accordance with section three hundred and twenty-three; current liability means a liability that would in the ordinary course of events be payable within twelve months after the end of the financial year to which the accounts or group accounts concerned relate; debenture means a document issued by a body corporate that evidences or acknowledges a debt of the body corporate, whether or not it constitutes a charge on property of the body corporate, in respect of money that is or may be deposited with or lent to the body corporate, other than a document of the following kinds: (a) a document acknowledging a debt incurred by the body corporate in respect of money that is or may be deposited with or lent to the body corporate by a person- (i) in the ordinary course of a business carried on by the person; and (ii) in the ordinary course of such business of the body 19

20 corporate as is not part of a business of borrowing money and providing finance; (b) a document issued by a bank in the ordinary course of its banking business that evidences or acknowledges indebtedness of the bank arising in the ordinary course of that business; (c) a cheque, order for the payment of money or bill of exchange; (d) a document of a kind prescribed, and in the circumstances prescribed in the regulations for the purposes of this paragraph; and includes- (a) a unit of a debenture; (b) debenture stock; and (c) bonds and any other securities issued by a company, whether constituting a charge on the assets of the company or not; debenture holder includes a debenture stockholder; declaration means a declaration of bankruptcy made by the Official Receiver under section forty-two; declaration of solvency means a declaration made in accordance with section three hundred and twenty-three; execution process means- (a) issuing or proceeding with any of the following orders or warrants under a 20

21 judgment or order obtained against a debtor in any court in its civil jurisdiction: (i) an order or warrant for the possession, seizure or sale of any property; or (ii) an order of attachment; (b) obtaining a garnishee order in favour of a judgment creditor; (c) obtaining an order stating that a judgment creditor may sue a sub-debtor; (d) having a charging order nisi made absolute by a court; (e) beginning or continuing proceedings in any court for the appointment of a receiver of any property, except an application for the appointment of the trustee as receiver and manager under section thirty-eight; (f) exercising any power of re-entry under a lease, or any power terminating a lease; or (g) seizing or selling any property by way of distress for rent; financial year (a) in relation to a company, means the financial year of the company; (b) in relation to a foreign company, means the financial year of the foreign company; and (c) in relation to any other body corporate, means a period in relation to which the body corporate, in conformity with the law 21

22 of the place of its incorporation, produces accounts; general meeting means an annual general meeting or an extraordinary general meeting; goods include personal property; insolvency practitioner means a person referred to under section seven; insolvent person means a person who is not bankrupt and who resides, carries on business or has property in Zambia and whose liabilities to creditors provable as claims under this Act amount to not less than such amount as may be prescribed and- (a) who is for any reason unable to meet that person s obligations as they become due; (b) who has ceased paying that person s current obligations in the ordinary course of business as they become due; or (c) the aggregate of whose property is not, at a fair valuation, sufficient, or, if disposed of at a fairly conducted sale under legal process, would not be sufficient to enable payment of all that person s obligations, due and accruing; liquidator includes a provisional liquidator; members voluntary winding-up means a voluntary winding-up with respect to which a declaration of solvency was made in accordance with section three hundred and twenty-three; officer includes- 22

23 (a) a director, secretary or executive officer of a body corporate; (b) a local director of a foreign company; (c) a receiver of any part of the undertaking of a body corporate appointed under a power contained in any instrument; and (d) a liquidator of a body corporate appointed by the members in a voluntary windingup; but does not include- (i) a receiver of any part of the undertaking of a body corporate appointed by the court; (ii) a liquidator of a body corporate appointed by the court or by the creditors of the body corporate; or (iii) an auditor of a body corporate; Official Receiver means a person appointed as the Official Receiver under section four; ordinary resolution has the same meaning as assigned to it in the Companies Act, 2012; person includes a partnership, an unincorporated body, a corporation, an association, society or the successor in title; property includes money, goods, choses in action and land, whether real or personal, legal or equitable, and whether situated in Zambia or elsewhere, and obligations, easements and every description of estate, interest and profit, present or future, vested or contingent in, arising out of, or incidental to, property; 23

24 Act No. 15 of 2010 proposal means a proposal for composition, for extension of time or for a scheme or arrangement; provable claim includes any claim or liability provable in proceedings under this Act by a creditor; receiver includes an official receiver and a receiver and manager; and any reference to a receiver of the property of a company includes a reference to a receiver of part only of that property and to a receiver only of the income arising from that property, or from part thereof; recognised professional body means a professional body declared by the Minister as a recognised professional body under section nine; record includes a computer record and any other non-documentary record; register of liquidators has the same meaning assigned to it in the Companies Act, 2012; register of receivers has the same meaning assigned to it in the Companies Act, 2012; Registrar means the Registrar of Companies appointed under the Patents and Companies Registration Agency Act, 2010; relative in relation to an individual means (a) a parent, spouse, child, brother, sister, nephew, niece, uncle, aunt, grandparent or cousin of that person; (b) a parent, child, brother or sister of the spouse of that person; or 24

25 (c) a nominee or trustee of any of the persons specified in paragraph (a) or (b); secured creditor means a person holding a mortgage, pledge, charge or lien on, or against, the property of the debtor or any part thereof as security for a debt due or accruing to that person from a debtor, or a person whose claim is based on, or secured by, a negotiable instrument held as collateral security and on which the debtor is only indirectly or secondarily liable; security agreement means an agreement under which property becomes subject to a security for the payment of an obligation; service provider means any entity or person who supplies fuel, water or sanitation services, electricity, telecommunications or such other services as may be prescribed; shareholder includes a stockholder; shares include stock; special resolution means a resolution of creditors passed in accordance with this Act; successor in title means the successor of a person and an heir, executor, liquidator, administrator or other legal representative of a person, as the case may be; transaction includes a gift, agreement or arrangement, and entering into a transaction shall be construed accordingly; trustee means a trustee in bankruptcy of a debtor s estate; and 25

26 voluntary arrangement means an arrangement entered into by a company and its creditors by way of (a) a composition for the satisfaction of the company s debts; (b) a scheme; or (c) arrangement of the company s affairs. (2) A reference in this Act to- (a) a receiver or manager of the property of a company, or to a receiver thereof, includes a reference to a receiver or manager, or to a receiver of part only of that property and to a receiver only of the income arising from that property or from part thereof, as the case may be; and (b) the appointment of a receiver or manager under powers vested in any instrument, includes a reference to an appointment made under powers which, by virtue of any written law, are implied in, and have effect as if, vested in that instrument. Application 3. This Act applies to artificial and legal persons and their successors in title. PART II OFFICIAL RECEIVER, TRUSTEES IN BANKRUPTCY AND INSOLVENCY PRACTITIONERS Appointment of Official Receiver and other staff 4. (1) The Public Service Commission shall appoint a suitably qualified person as the Official Receiver for Zambia, 26

27 and such number of assistant official receivers as may be required for purposes of this Act. (2) The Official Receiver and assistant official receivers shall be officers of the court. (3) The Official Receiver shall be a corporation sole by the name of the Official Receiver and shall have perpetual succession and an official seal, and may sue or be sued in the corporate name. (4) The Official Receiver may administer oaths for the purpose of affidavits, verifying proofs, petitions or other proceedings under this Act. (5) The Official Receiver may, for purposes of this Act- (a) investigate the conduct of a debtor and make a report to the court; (b) participate in the public examination of debtor; (c) assist in the prosecution of a debtor; (d) prior to an order of adjudication, act as interim receiver of a debtor s estate, and where a manager is not appointed, as manager of the estate; (e) summon and preside at the first meeting of creditors; (f) report to creditors, unless otherwise provided by this Act, on any proposal made by a debtor with respect to the mode of liquidating the debtor s affairs; (g) act as trustee as provided under this Act; and 27

28 (h) perform any other functions specified by or under this Act. (6) All provisions in this or any other Act referring to a trustee in bankruptcy shall, unless the context otherwise requires, or the Act otherwise provides, include the Official Receiver when acting as trustee. Trustees in bankruptcy 5. (1) A trustee may be appointed by- (a) a general meeting of the creditors of a bankrupt; (b) the Official Receiver; or (c) the court. (2) A power to appoint a person as trustee of an estate of a bankrupt includes power to appoint two or more persons as joint trustees. (3) An appointment under subsection (2) shall make provision for the circumstances in which the trustees shall act together and the circumstances in which one or more of them may act on behalf of the others. (4) Where a bankruptcy order has been made and no certificate for the summary administration of the estate of the bankrupt has been issued, the Official Receiver shall, within a period of ninety days from the date on which the bankruptcy order is made, summon a general meeting of the creditors of the bankrupt for the purpose of appointing a trustee. (5) The Official Receiver shall, where the Official Receiver does not summon a meeting of creditors under subsection (4) within the period of ninety days referred to in that subsection, appoint a suitably qualified person as a trustee. 28

29 (6) A creditor of the bankrupt may request the Official Receiver to summon a meeting of creditors to appoint a trustee if- (a) the Official Receiver does not- (i) summon a general meeting of the creditors of the bankrupt for the purpose of appointing the trustee as required under subsection (4); or (ii) appoint a trustee under subsection (5); and (b) a certificate for the summary administration of the estate of the bankrupt is not in force. (7) The Official Receiver shall be trustee of the estate of the bankrupt where- (a) a meeting of creditors summoned under this section is held but no appointment of a person as trustee is made; or (b) a bankruptcy order is made on a petition under this Act based on criminal bankruptcy. (8) A trustee shall carry out the functions and duties of a trustee under this Act and shall exercise the powers set out in the First Schedule. Appointment of trustee by court 6. (1) Where the court issues a certificate for the summary administration of an estate of a bankrupt, the Official Receiver shall, from the date of issue of that certificate, be the trustee. (2) Where the court makes a bankruptcy order on the submission of an insolvency practitioner s report to the 29

30 court but does not issue a certificate for the summary administration of the estate, it may, on making the order, appoint the person who made the report as trustee. (3) Where the court makes a bankruptcy order, whether or not on a petition, when there is a supervisor of a voluntary arrangement approved in relation to the bankrupt, the court may, on making the order, appoint the supervisor of the arrangement as trustee. (4) A trustee appointed by the court shall give the creditors of the bankrupt notice of the appointment and advertise the appointment in accordance with the directions of the court. (5) A trustee shall, in the notice and advertisement referred to in subsection (4)- (a) state whether the trustee proposes to summon a meeting of the creditors for the purpose of establishing a committee of creditors; and (b) if the trustee does not propose to summon a meeting of creditors, inform the creditors of their right to request the trustee to summon the meeting in accordance with the provisions of this Act. Insolvency practitioner 7. (1) A person shall be an insolvency practitioner, in relation to a company, if that person acts as the- (a) liquidator, provisional liquidator, receiver, administrator or administrative receiver of the company; or 30

31 (b) supervisor of a voluntary arrangement approved by the company under this Act. (2) Notwithstanding any other law, a person shall be an insolvency practitioner, in relation to an individual, if that person acts as- (a) the trustee of the individual in bankruptcy, the interim receiver of that person s property or as the permanent or interim trustee in the sequestration of that person s estate; (b) a trustee under a deed of arrangement made for the benefit of the creditors of the individual or a trust deed for the creditors of the individual; (c) the supervisor of a voluntary arrangement proposed by the individual and approved under this Act; or (d) in the case of a deceased individual to the administration of whose estate this section applies by virtue of an order, as administrator of that estate. (3) References in this section to an individual include, except in so far as the context otherwise requires, references to a partnership. (4) A body corporate shall not be an insolvency practitioner. (5) A person shall be qualified to act as an insolvency practitioner if that person is a member of a professional body recognised under section nine. (6) A person is not qualified to be an insolvency practitioner if that person- 31

32 (a) is an undischarged bankrupt or that person s estate has been sequestrated; or (b) has a mental disability that makes the person incapable of performing the functions of an insolvency practitioner. (7) A person who acts as an insolvency practitioner when that person is not qualified to do so, commits an offence and is liable, upon conviction, to a fine not exceeding one hundred thousand penalty units or to imprisonment for a period not exceeding two years, or to both. (8) This section does not apply to the Official Receiver. Application to act as insolvency practitioner 8. (1) A person who wishes to be an insolvency practitioner may apply to the Registrar in the prescribed manner and form upon payment of the prescribed fee. (2) The Registrar may direct that notice of an application, made under subsection (1), be published in such manner as may be specified. (3) An application, made under subsection (1), may be withdrawn at any time before it is granted or refused. (4) The Registrar shall grant an authorisation to be an insolvency practitioner to an applicant, if the applicant is a member of a recognised professional body. (5) An authorisation granted under subsection (4) shall continue in force for such period as may be specified in the authorisation. (6) The Registrar shall withdraw an authorisation granted under subsection (4) if the holder of the authorisation- 32

33 (a) is no longer a member of the recognised professional body or has been suspended by the recognised professional body; (b) fails to comply with any provision of this Act; or (c) furnishes the Registrar with false, inaccurate or misleading information in relation to any matter under this Act. (7) The Minister may, by statutory instrument, prescribe- (a) the criteria and procedure for the varying, transfer and revocation of an authorisation; and (b) the terms and conditions attaching to the grant, refusal, transfer or revocation of an authorisation. Recognised professional bodies 9. The Minister may, by statutory order, declare a professional body as a recognised professional body for the purposes of section seven. PART III NATURE OF BANKRUPTCY AND RELATED PROCESSES Nature of bankruptcy 10. The legal status of a person shall be affected by bankruptcy with the following consequences: (a) the property of a bankrupt vests in the trustee in bankruptcy or where there is no trustee, the Official Receiver; 33

34 (b) (c) the person who is a bankrupt is limited in the business activities that person can undertake; and the Official Receiver may recover the value of the assets that the bankrupt transferred within two years before bankruptcy with intent to defraud creditors. Alternatives to bankruptcy 11. A debtor who is insolvent may, as an alternative to bankruptcy- (a) make a proposal to creditors in accordance with the provisions of this Act; (b) pay creditors in instalments under a summary instalment order; or (c) enter the no asset procedure. Adjudication and declaration 12. (1) A debtor is (a) adjudged bankrupt if a creditor of the debtor applies to the court for an order to adjudge the debtor bankrupt, and the court makes the order; or (b) declared bankrupt if the debtor files an application with the Official Receiver for a declaration that the debtor is bankrupt and the Official Receiver makes the declaration. (2) A court may adjudge a debtor bankrupt if - (a) a creditor of the debtor has applied under section thirteen for the adjudication of the debtor; and 34

35 (b) the debtor commits an act of bankruptcy under this Act. (3) A debtor may be declared bankrupt by filing an application with the Official Receiver as provided for in sections forty-one to forty-three. Adjudication on Application of Creditor Application for adjudication of debtor by creditor 13. (1) A creditor may apply for a debtor to be adjudged bankrupt if- (a) the debtor owes the creditor such amount as may be prescribed or more, and if one or more creditors join in the application, the debtor owes a total of the prescribed amount or more to the creditors; (b) the debtor has committed an act of bankruptcy within the period of three months before the filing of the application; (c) the debt is a certain amount; and (d) the debt is payable either immediately or on a future date. (2) A creditor shall not withdraw an application for adjudication without the permission of the court. Application by secured creditor 14. The court shall only make an order adjudging a debtor bankrupt on the application of a secured creditor if the secured creditor establishes that the amount of the debt exceeds the value of the security by at least the prescribed amount. 35

36 Requirement of act of bankruptcy 15. A debtor shall not be adjudged bankrupt on the application of a creditor unless the debtor has committed an act of bankruptcy within a period of three months immediately before the creditor files the application. Acts of Bankruptcy Acts of bankruptcy 16. (1) A debtor commits an act of bankruptcy if (a) a creditor has obtained a final judgment or a final order against the debtor for the prescribed amount and execution of the judgment or order has not been stayed by a court; (b) the debtor has been served with a bankruptcy notice; and (c) the debtor has not, within the time limit specified in subsection (3)- (i) complied with the requirements of the bankruptcy notice; or (ii) satisfied the court that the debtor has a counter-claim against the creditor. (2) A debtor shall be served with a bankruptcy notice in Zambia unless the court grants permission for the service of the bankruptcy notice on the debtor outside Zambia. (3) The time limit referred to in paragraph (c) of subsection (1) is- (a) if the debtor is served with the bankruptcy notice in Zambia, ten working days after service of the bankruptcy notice; or 36

37 (b) if the debtor is served outside Zambia, the time specified in the order of the court permitting service of the bankruptcy notice outside Zambia. (4) In paragraph (a) of subsection (1), a creditor who has obtained a final judgment or a final order includes a person who is, for the time being, entitled to enforce a final judgment or final order. (5) For purposes of this section, where a court has given permission for enforcing an arbitration award that the debtor pays money to the creditor- (a) final order includes the arbitration award; and (b) proceedings include the arbitration proceedings in which the award was made. (6) In sub-paragraph (ii) of paragraph (c) of subsection (1), counterclaim means a set-off or cross demand that- (a) is equal to, or greater than, the judgment debt or the amount that the debtor has been ordered to pay; and (b) the debtor could not use as a defence in the action or proceedings in which the judgment or the order, as the case may be, was obtained. Disposition of property to trustee for benefit of creditors 17. A debtor commits an act of bankruptcy if, in Zambia or elsewhere, the debtor disposes of all or a substantial part of the debtor s property to a trustee for the benefit of all or any of the debtor s creditors. 37

38 Fraud or intent to prefer creditor 18. A debtor commits an act of bankruptcy if the debtor, fraudulently or with intent to give any creditor an advantage over other creditors- (a) disposes of the debtor s property, or part of it; (b) creates a charge on the debtor s property or gives any security on it; (c) makes any payment; or (d) incurs any obligation. Departure from Zambia 19. A debtor commits an act of bankruptcy if the debtor, with intent to defeat or delay the creditors- (a) departs, attempts to depart or prepares to depart from Zambia; or (b) being out of Zambia, remains outside Zambia. Avoidance of creditors 20. A debtor commits an act of bankruptcy if the debtor, with intent to defeat or delay the creditors, avoids them by leaving or keeping away from the debtor s home, or by staying within that home. Notice of suspension of payment of debts 21. A debtor commits an act of bankruptcy if the debtor notifies any of the creditors that the debtor has suspended, or is about to suspend, payment of the debts. Admission of insolvency to creditors 22. (1) A debtor commits an act of bankruptcy if the debtor admits at a meeting of creditors that the debtor is insolvent and- 38

39 (a) a majority of the creditors present at the meeting require the debtor to file an application for adjudication; or (b) the debtor agrees to file an application for adjudication and does not do so within two days after the meeting. (2) In paragraph (a) of subsection (1), majority means a majority by number of the creditors present and the value of their debts. Possession under execution process 23. (1) A debtor commits an act of bankruptcy if (a) an execution process has been issued against the debtor or the property of the debtor; or (b) the property of the debtor has been taken into possession under the execution process; and the judgment or order for which the execution process has been issued is not satisfied within seven days after possession has been taken. (2) In this section, execution process means- (a) a charging order; (b) an order for sale; (c) an order of possession; (d) an arrest warrant; or (e) an order of sequestration. Sale order 24. (1) A debtor commits an act of bankruptcy if- (a) an order for sale directed against any land of the debtor, or any interest in that land, has been delivered to a bailiff; and 39

40 (b) as part of the execution process, the land or interest has been advertised for sale in at least one daily newspaper of general circulation in Zambia. (2) Subsection (1) does not apply, and an act of bankruptcy is not committed, if the judgment or the order under which the order of sale has been issued is satisfied within seven days after the order of sale has been delivered to the court bailiff and advertised. Return that sufficient goods not found under execution process 25. A debtor commits an act of bankruptcy if, under an execution process issued against the debtor or the debtor s property, a return is made that sufficient goods and chattels of the debtor could not be found on which to levy the debt. Removal or concealment of property 26. A debtor commits an act of bankruptcy if the debtor, with intent to prejudice the creditors, or to give one creditor an advantage over another- (a) removes or attempts to remove any of the debtor s property from any place; or (b) conceals or attempts to conceal any of the debtor s property. Unsatisfied judgment for non-payment of trust money 27. A debtor commits an act of bankruptcy if (a) the debtor is required by law to keep a trust account and judgment has been given against the debtor for non-payment of trust money; and 40

41 (b) the judgment referred to in paragraph (a) is not satisfied within seven working days after the date of the judgment. Bankruptcy Notice Form of bankruptcy notice 28. (1) A bankruptcy notice shall (a) be in the prescribed form; (b) require the debtor, in relation to the judgment debt or sum ordered to be paid under a final order to- (i) pay the amount owing, plus costs; (ii) give security for the amount owing that satisfies the creditor or the court; or (iii) compromise the amount owing on terms that satisfy the court or the creditor; (c) state the consequences of the debtor not complying with the bankruptcy notice; and (d) be served on the debtor in the prescribed manner. (2) A bankruptcy notice may specify an agent to act on behalf of the creditor in respect of - (a) any payment to be made to the creditor; or (b) any other step to be taken that involves the creditor. (3) In this section 41

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