This is a summary of the notable changes introduced by the Movable Property Security Interests Act [Chapter 14:15] (‘the Act’) which came into force on the 4th of November 2022.
This Act establishes a Collateral Registry within the Reserve Bank of Zimbabwe which will enable individuals and entities to utilise their movable property as collateral for credit.
Once the Act it is in full implementation, it is supposed to be easier for individuals and businesses alike to have access to loans and to secure their loans using movable property.
Prior to this Act, an individual or entity could utilise their movable property as collateral for credit by the registration of a notarial bond at the Deeds Registry.
As of 4 November 2022, and in terms of Section 3 of the Act, no security interests may be registered by way of a notarial bond in the Deeds Office but must be registered with the Collateral Registry.
1. SECURITY INTEREST
A ‘security interest’ is defined in the Act as a right in a movable asset that is created by an agreement to secure payment or other performance of an obligation.
The definition of security interest is broad and includes any security interest that may be evidenced or created by means of a chattel mortgage, notarial bond, hypothec, note of hand, charge, secured debenture, pledge, trust indenture, trust receipt, financial lease and any other transaction that secures payment or performance of an obligation.
A security interest in a future asset, and an undivided interest in a movable asset is also registrable.
The security interest is registered with the Collateral Registry through a registration notice.
2. SECURITY AGREEMENT
A security interest is created when a debtor and a creditor enter into a security agreement. The security agreement must be in writing, signed by both parties and must describe the collateral. The collateral can be specific or mentioned in general.
3. REGISTRATION REQUIREMENTS
- The debtor must authorize the registration of a notice in writing. Amendments to the notice also require the written consent of the debtor. A written security agreement is sufficient to constitute authorisation by the debtor for the registration of a notice.
- The Registry is open to the public and any person may submit a notice to the Registry as long as the said person has a user account and has paid the prescribed fees.
- The registration of an initial, amendment or cancellation notice is effective from the date and time when the information is entered into the records of the Registry and is accessible to searchers. A notice is valid for the period of time indicated by the registrant and may be extended within the period of six months before it expires.
4. PRIORITY OF SECURITY INTERESTS
The priority of a security interest created by the same debtor over the same asset is determined according to the time of registration of a notice at the Collateral Registry.
A security interest created by a debtor in an asset and perfected by registration of notice in the Collateral Registry will have priority over any other security interest created by the same debtor in the same assets and perfected in a mode recognised by common law, regardless of the time of the latter perfection
5. IMPACT OF DEBTORS INSOLVENCY OR LIQUIDATION
A perfected security interest at the time of commencement of liquidation proceedings of the debtor retains the priority it had before the commencement of the insolvency proceedings unless another claim has priority over it.
In terms of the Act, If the insolvent individual/entity consists of security interests in the nature of a notarial bond registered in a Deeds Registry and another perfected by registration in the Collateral Registry, the registration in the Collateral Registry shall have priority over the registration in the Deeds Registry.
On the face of it, this provision does not make sense as it gives priority to security interests registered in the Collateral Registry over those security interests previously registered in the Deeds Registry. This provision may need to be reconsidered as it amends the old Insolvency Act [Chapter 6:04] and the old Companies Act [Chapter 24:03] both of which have been repealed.
We will take this up with the relevant authorities to ascertain how the rights of existing creditors who had validly registered notarial bonds can be protected.
6. ENFORCEMENT OF REGISTERED NOTICES RELATING TO SECURITY INTERESTS
A registered notice of a security interest is deemed to be a liquid document enforceable by way of provisional sentence proceedings.
7. TRANSITIONAL PROVISIONS
Every security interest which was perfected prior to the Act coming into force continues to be legally valid and enforceable.
Such security interest also retains its priority if it is registered in the Collateral Registry within nine (9) months from the 4th of November 2022. This provision means that every Notarial Bond over moveable registered in the Deeds Registry must be registered again in the Collateral Registry in order to retain its priority.
Regulations on how the Collateral Registry will actually operate are to be made by the Minister of Finance and Economic Development. With the suspension of the registration of notarial bonds at the Deeds registry already being in place, this leaves members of the public in a lacuna until such a time that the regulations to the Act are promulgated. We will advise further as soon as such Regulations are available
GILL GODLONTON & GERRANS
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100 Nelson Mandela Avenue