The Administrative Court (TA) upheld the decision to declare the administrative acts of the Bank of Mozambique (BoM) in its intervention in Moza Banco null and void. At issue, according to a ruling cited by Lusa, is the way in which the central bank intervened in that institution, citing at the time the unstable financial situation and its systemic risk, an announcement made through a notice published on 14 November 2016 in the Boletim da República (BR).
‘It is easy to see that it entered into force and began to produce legal effects on 14 November 2016, when in fact Moza Banco was intervened by the BoM on 30 September 2016, before the publication of the controversial notice,’ says the TA document notified on 1 April, in response to the appeal filed by the central bank, whose governor has been Rogério Zandamela since August 2016.
According to the court, ‘the appellant is mistaken and contradicts itself in its position when it argues that, in order to legitimise the intervention of Moza Banco, it was not necessary to publish the BoM governor’s notice in the BR. However, it proceeded to publish the relevant notice 44 days after its intervention,’ adds the ruling, which fully confirms the first decision, in favour of the plaintiff, Moçambique Capitais, a minority shareholder (around 3%), but which at the time of the facts was the majority shareholder and founder of the bank.
Governor of the Bank of Mozambique, Rogério Zandamela
The TA ruling recalls that at the time of the intervention, Moçambique Capitais held a 51 per cent stake in Moza Banco, worth one billion meticals (15.5 million dollars). However, that stake is now worth 217.1 million meticals (3.3 million dollars), due to the reduction in share capital.
‘The BoM should never have intervened in Moza Banco, without first publishing the notice in the BR, because otherwise it would be contradictory to the Constitution, so the decisions it took from 30 September 2016 to 14 November 2016 have no legal value, and are therefore null and void,’ it adds, thus annulling “materially administrative acts”, such as “the intervention and adoption of the extraordinary measure to reorganise Moza Banco”, and the appointment of a Board of Directors.
The ruling emphasises that the Constitution ‘requires the BoM governor’s notices to be published in the BR, under penalty of legal inefficiency’, so the ‘request for a declaration of nullity of the appeal does not proceed.’
The ruling also states that the intervention was carried out ‘without legal backing’, classifying the BoM’s position as ‘antagonistic’, ‘when it argues that in order to legitimise the intervention in Moza Banco it was not necessary to publish the governor’s notice’, doing so after ‘44 days had passed’.
The decision adds that ‘at the end of the investor selection procedure’, Kuhanha ‘proved to be the most favoured due to its compliance with the basic requirements’, recalling that Rogério Zandamela is the chairmans of the company, whose share capital ‘is entirely owned by the BoM and which subscribed to the majority of Moza Banco’s capital’ during its recapitalisation.
‘The BoM should never have intervened in Moza Banco without first publishing the notice in the BR, because otherwise it would be contrary to the Constitution, so the decisions it took from 30 September 2016 to 14 November 2016 have no legal value, and are therefore null and void.’
Moza Banco came to be led in 2016 by Kuhanha, the management company of the BoM workers’ pension fund (currently with more than 60 per cent of the share capital), following the central bank’s intervention, when it had Portugal’s Novo Banco as one of its main shareholders (49 per cent), the successor to Banco Espírito Santo.
An official Moza Banco source contacted by Lusa explained that the institution would not comment on the content of the judgement, guaranteeing only that ‘the bank maintains its focus on stability, solidity and commitment to its customers, employees and partners’, continuing ‘to grow in a sustainable manner and in line with the best practices in the financial sector in Mozambique.’
