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Draft
joint memorandum to the Cabinet Committee on Legislation
Minister
of Justice and Legal Affairs and the Minister of Labour and Social
Service
May 20, 2009
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RE:
Amendment of the Private
Voluntary Organisations (PVO) Act [Chapter 17:05] (Whose administration
is assigned to the Minister of Labour and Social Services) and The
Deeds Registries Act [Chapter 20:05] (Whose administration is assigned
to the Minister of Justice and Legal Affairs)
1. Definition
of Private Voluntary Organisation
The Private Voluntary Organisations Act [Chapter
17:05] requires a private voluntary organisation (PVO) to register
before it can “commence or continue to carry on its activities”
or “seek financial assistance from any source.” A PVO
is, amongst other requirements, mandated to keep proper books of
accounts which are subject to inspection.
A PVO is defined in the Act as any body the objects
of which include the provision of material, physical or social needs
of persons, rendering of charity to persons in distress, provision
of assistance at uplifting standard of living, provision of funds
for legal aid and the promotion of the welfare of animals.
In short, a private voluntary organisation can be
said to be anon-governmental organisation (NGO) that promotes the
welfare of animals or that provides legal aid or welfare to persons
in need.
The Act excludes the Zimbabwe Red Cross Society
and the following bodies from its definition of a PVO:
a) a religious body in respect of religious work,
b) an educational trust established by the Minister or a trust established
directly by an enactment or registered with the High Court,
c) a body the benefits of which are exclusively for its own members,
d) registered health institutions and supporting bodies,
e) a political party in work confined to political activites.
Since these bodies are excluded from the definition
of a PVO, they can provide for the welfare of persons or animals
in the manner contemplated but are not required to register.
2. Statement
of the problem
There appears to be uncertainty whether a trust
whose objects include those of a PVO can avoid registration as a
PVO by registering the deed of trust with the Deeds Registry. The
Ministry of Labour and Social Services has received applications
for registration as PVOs from NGOs which are registered as trusts
with the Deeds Registry. These NGOs had previously opted to register
as trusts in the belief that a trust was not required to register
as a PVO. They now wish to register as PVOs so that they can operate
freely with the cooperation of Government departments within the
country.
The only trusts engaged in welfare work which are
exempted from registering as PVOs are those which are excluded from
the definition of "private voluntary organisation" as
referred to in paragraph 1 above. However, for the avoidance of
doubt, it is felt that the Act should be amended to make it clear
that a trust which falls within the definition of a PVO is obliged
to register as a PVO before it can commence it activities.
It is however emphasised that three is no legal
impediment o the registration of these NGOs as PVOs and that therefore
the Ministry does not have to await the enactment of these amendments
before it can register them.
3. Desired
outcome
Any NGO which is involved in the provision of welfare
and relief from distress must register itself as a PVO. In future,
registration as a trust by such an NGO must be preceded by registration
as a PVO in terms of the Act. NGOs involved in welfare and relief
work which are already registered as trusts but have not been registered
as PVOs must regularise their position by registering as PVOs.
4. Amendments
to legislation
To achieve this limited outcome, the Private Voluntary
Organisations Act should be amendment in the definition of "private
voluntary organisation" by the inclusion of a trust in the
list of bodies which are identified in the definition of a PVO so
that it reads:
"private voluntary organisation" means
any body or association of person, corporate or unincorporate, or
any institution or trust, the objects of which include . . . ."
Section 6 (Private voluntary organisations to be
registered) should be amended by the insertion of a new subsection
(1a) which reads:
"A notarial deed of a donation to be held in
trust the objects of which include those of a private voluntary
organisation shall not be registered in terms of the Deeds Registry
Act [Chapter 20:05] unless the trust has first been registered as
a private voluntary organisation in terms of the Act."
Subsection (m) of section 5 (Duties of registrars)
of the Deeds Registry Act [Chapter 20:05] should be amended to insert
the words underlined.
(m) register antenuptial contracts, such as notarial
deeds of donation, including, subject to section 6(1a) of the Private
Voluntary Organisations Act [Chapter 17:05], a donation to be held
in trust, and such other deeds having reference to persons and property
within the area served by the deeds registry in question as are
required or permitted by law to be registered.
We submit these principles for the Committee's consideration
and approval.
Hon. P.A. Chinamasa
(MP)
Minister of Justice and Legal Affairs
Hon. P. Mpariwa
(MP)
Minister of Labour and Social Services
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