Decree No. 25/2006 of August 23 - Establishes the Securities Central and Approves its Operating Regulations

Monday, August 23, 2006 I SERIES — Number 34
REPUBLIC GAZETTE
OFFICIAL PUBLICATION OF THE REPUBLIC OF MOZAMBIQUE NATIONAL PRESS OF MOZAMBIQUE NOTICE The matter to be published in the "Boletim da República" must be submitted in a duly authenticated copy, one for each subject, which must contain, in addition to the necessary indications for this purpose, the following endorsement, signed and authenticated: For publication in the "Boletim da República".

SUMMARY
Council of Ministers:
Decree-Law No. 3/2006:
Establishes the regime for the constitution, alteration, and dissolution of legal entities and amends articles 168, 185, 1143, 1232, and 1239 of the Civil Code.

Decree-Law No. 4/2006:
Approves amendments to the Notarial Code.

Decree No. 24/2006:
Amends article 10 of Decree No. 43525 of March 7, 1961, and revokes paragraphs 2 and 3 of article 10 of Decree No. 43525 of March 7, 1961, regarding the requirement for the granting of a public deed.

Decree No. 25/2006:
Establishes the Securities Central and approves its Operating Regulations.

Resolution No. 29/2006:
Ratifies the Agreement of Accession of the Republic of Mozambique to the Islamic Corporation for the Financing of International Trade.

Resolution No. 30/2006:
Ratifies the Credit Agreement concluded between the Government of the Republic of Mozambique and the Islamic Development Bank.

COUNCIL OF MINISTERS
Decree-Law No. 3/2006 of August 23

The dynamics of economic life impose the establishment of faster and less bureaucratic procedures in the constitution of legal entities and the celebration of contracts. The legislation currently in force provides for the requirement of a public deed for the validity of some acts and contracts, a requirement that ultimately hinders the desired speed, thus making it necessary to amend the current legislation.

Therefore, under the provisions of paragraph d) of paragraph 1 of article 204 of the Constitution and article 1 of Law No. 5/2006 of May 10, the Council of Ministers determines.

ARTICLE 1

1. The constitution of commercial and civil companies in commercial form, associations, and foundations, the alteration of their bylaws or statutes, and their liquidation and dissolution, provided they do not involve real estate, may be made by a private document, typewritten, on white paper, without corrections, upon its presentation for registration at the respective Commercial Registry Office.
2. The private document mentioned in the previous paragraph must be initialed on all pages and signed by all participants in the act, with signatures recognized in person.
3. For the purposes of constituting the legal entity, the Conservator will verify the identity, capacity, and/or powers of representation for the act of all interested parties.
4. The Conservator of the Registry Office where the legal entity is intended to be registered or is registered will verify whether the statutes of the legal entity or the alterations to be registered are in accordance with current legislation and whether the other legal requirements provided for the practice of the respective act are met.
5. Once the act is registered, when required by law, the Registry Office will immediately send the respective certificate to the National Press for publication in the Boletim da República, at the expense of the interested parties, by authenticating a copy of the private document, which must contain the identification of the participants in the act.

ARTICLE 2
Articles 168, 185, 1143, 1232, and 1239 of the Civil Code, approved by Decree-Law No. 47344 of November 25, 1966, and put into force in Mozambique by Ordinance No. 22869 of September 4, shall have the following wording:

"ARTICLE 168"
Form and Publicity

1. The act of constitution of the association, the statutes, and their alterations, in which real estate is involved, must be contained in a public deed.
2. The act of constitution of the association, the statutes, and their alterations, to produce effects in relation to third parties, must be published in the official journal.

ARTICLE 185
Institution and its revocation
1
2
3. The institution by inter vivos act in which real estate is involved must be contained in a public deed and becomes irrevocable as soon as the recognition is requested or the respective official process begins.
4
5. To the act of institution of the foundation, when contained in a public deed, as well as, in any case, to the statutes and their alterations, the provisions in the final part of paragraph 1 and in paragraph 2 of article 168 are applicable.

ARTICLE 1143
Form
The loan contract is valid if it is concluded by a document signed by the borrower, with a signature recognized in person.

ARTICLE 1232
Form
Without prejudice to special rules of form regarding the alienation of the thing or right, the perpetual annuity is valid if it is constituted by a document signed by the parties with signatures recognized in person.

ARTICLE 1239
Form
Without prejudice to special rules of form regarding the alienation of the thing or the right, the life annuity may be constituted by a written document signed by the parties with signatures recognized in person."

ARTICLE 3
The provisions contained in other legislation not expressly provided for in this law, which provide for or require a public deed for the constitution or alteration of the social pact of commercial, civil, and commercial form companies, associations, and foundations, in which real estate is not involved, shall be understood as referring to a private document or to the minutes of the general assembly of the respective legal entity, duly signed, with recognized signatures, by the contractors or participants.

ARTICLE 4
This Decree-Law enters into force 30 days after its publication.
Approved by the Council of Ministers, on May 30, 2006.
Published.
The President of the Republic, ARMANDO EMÍLIO GUEBUZA.

Decree-Law No. 4/2006 of August 23

The prompt promulgation of legislative measures in various areas has affected important sectors of economic life and public administration.
In the area of notary services, it is equally necessary to adopt a legal instrument consistent with the process of simplifying procedures and, consequently, to revise the functional organization of the respective services, making them more suitable for the efficient implementation of new procedures.

In these terms, and under the provisions of paragraph d) of paragraph 1 of article 204 of the Constitution and article 1 of Law No. 4/2006 of May 10, the Council of Ministers determines:

ARTICLE 1
(Approval of amendments to the Notarial Code)
Amendments to the Notarial Code, attached to this instrument and forming an integral part thereof, are approved.

ARTICLE 2
(Entry into force)
This Decree-Law enters into force 30 days after its publication.
Approved by the Council of Ministers, on May 30, 2006.
Published.
The President of the Republic, ARMANDO EMÍLIO GUEBUZA.

TITLE I
Organization of Notarial Services
CHAPTER I
General Provisions

ARTICLE 1
(Notarial function)

1. The notarial function has essentially the purpose of giving legal form and conferring authenticity to extrajudicial legal acts.
2. The notary may provide advice to the parties in the expression of their business will.

ARTICLE 2
(Normal organs)

1. The normal organs of the notarial function are the notaries and the technicians of the notarial offices.
2. Other employees may only exercise the notarial function to the extent that the law expressly permits.

ARTICLE 3
(Special organs)

1. Exceptionally, the following perform notarial functions:
   a) Mozambican consular agents; b) Notaries exclusive to public institutions, provided they are duly authorized; c) Commanders of military units or forces, ships, aircraft, and campaign units, under the terms of applicable legal provisions; d) In case of public calamities, doctors, judges, and priests may exceptionally exercise the notarial function; e) Employees to whom competence specific to notaries is attributed regarding certain acts.

2. The acts practiced in the use of the competence enjoyed by the special organs of the notarial function must obey the provisions of this code, insofar as applicable to them.

ARTICLE 4
(Organization, territorial competence, and functioning of notarial offices) The organization, territorial competence, and functioning of notarial offices, as well as the duties of auxiliary personnel serving therein, are regulated by the legislation applicable to the registry and notary services.

CHAPTER II
Functional Competence
SECTION 1
Attribution of Notaries

ARTICLE 5
(Competence of notaries)

1. It is the duty, in particular, of the notary:
   a) To draw up public wills, instruments of approval, deposit, and opening of closed wills; b) To draw up other public instruments in notary books and outside them; c) To record authentication terms in private documents, or recognition of signatures affixed therein; d) To issue certificates of life and identity, as well as of the performance of public offices, management, or administration of legal entities; e) To issue certificates of other facts that he has duly verified; f) To certify, or make and certify, translations of documents. g) To issue certificates of public instruments and other archived documents, or to issue public forms of documents that, for this purpose, are presented by interested parties; h) To issue photocopies of instruments and other documents, or to verify with the respective originals the photocopies extracted by interested parties; i) To transmit by telecopy, electronic mail, or other computerized means in certified form, the content of public instruments, registers, and other documents archived in the notary office, to other public services before which they must have faith, and to receive those transmitted to him by these services, under the same conditions; j) To draw up instruments of minutes of meetings of corporate bodies; and k) To intervene in extrajudicial legal acts, to which interested parties wish to give special guarantees of certainty or authenticity.
2. Unless otherwise provided, the notary may practice, within the jurisdiction area of the respective office, all acts of his competence that are requested of him, even if they concern persons domiciled or assets located outside that area.
3. At the request of interested parties, the notary may request, by any means, from other public services the documents necessary for the instruction of the acts of his competence.

ARTICLE 6
(Acts practiced by technicians)
The provisions of this code that refer to the intervention of the notary in the acts of his competence are applicable to the other technicians of the notarial offices regarding the acts that fall within their duties and are practiced by them.

SECTION II
Impediments

ARTICLE 7
(Cases of impediment)

1. The notary cannot perform acts in which he himself, or his spouse, or any relative or affine, in the direct line or in the second degree of the collateral line, are direct or indirect parties or beneficiaries.
2. The impediment extends to acts whose parties or beneficiaries have as proxy or legal representative any of the persons included in the previous paragraph.
3. The notary may, however, intervene in acts in which a joint-stock company is a party or interested, of which he or the persons indicated in paragraph 1 are partners, as well as in acts in which a public utility legal entity is a party or interested, to whose administration he belongs.

ARTICLE 8
(Extension of impediments to technicians)

1. The impediment of the notary extends to the technicians of the notarial office to which the impeded notary belongs.
2. Exceptions are made for powers of attorney and sub-delegations with simple judicial powers and the recognition of handwriting and signature affixed in documents that do not title acts of a contractual nature, in which the technician may intervene, even if the represented, representative, or signatory is the notary himself.

CHAPTER III
Books, Indices, and Archives
SECTION I
Books

ARTICLE 9
(Books of notarial acts)

1. Especially intended for notarial acts, the following books shall be kept in each notary office:
   a) Notary book for public wills and for deeds of revocation of wills; b) Notary book for various deeds; c) Book of protests of credit titles; d) Book of registration of acts drawn up in the book indicated in paragraph a) and of instruments of approval or deposit of closed wills; e) Book of registration of various deeds; f) Book of registration of other separate instruments and documents that interested parties wish to archive; g) Book of registration of fee accounts and stamps.
2. The books referred to in the previous paragraph may be replaced by computer supports with observance of the applicable norms regarding page numbering.
3. In addition to the books of notarial acts, each notary office shall have a book of personal fees.

ARTICLE 10
(Books of special services)
The consular services and the other special organs of the notarial function shall have, among the books referred to in the previous article, those necessary for the practice of the notarial acts of their competence.

ARTICLE 11
(Models)

1. The notary must adopt the models of books that are most suitable for the service to which they are intended if there are no approved models.
2. The approved models may be modified by simple dispatch of the National Director of Registries and Notary.

ARTICLE 12
(Splitting of books)
Books may be split into several books, in accordance with the conveniences of the service.

ARTICLE 13
(Splitting of the book of registration of fee accounts and stamp)

1. The book of registration of fee accounts and stamp must be split into two books: one of them is intended for the registration of recognition accounts; the other, for the registration of accounts of other acts.
2. The book of each of the two species may still be split into several volumes, according to the conveniences of the service.

ARTICLE 14
(Book of public wills)
In the book referred to in paragraph a) of paragraph 1 of article 9, public wills and deeds of revocation of wills, as well as the respective endorsements, are drawn up.

ARTICLE 15
(Book of various deeds)
In the notary book for various deeds, all public deeds are drawn up, with the exception of those provided for in the previous article, and the respective endorsements.

ARTICLE 16
(Book of protests)
The book of protests is intended for the registration of the presentation of titles for protest and the respective instruments of protest, as well as a mention of their lifting under the terms provided for in article 132.

ARTICLE 17
(Book of registration of wills and deeds)
In each of the books referred to in paragraphs c) and e) of paragraph 1 of article 9, the annotation of the acts to which they are destined for registration shall be made.

ARTICLE 18
(Book of registration of separate instruments and documents) In the book of registration of separate instruments and documents, the following are registered:
a) Instruments of opening of closed wills; b) Instruments of minutes of meetings of corporate bodies, powers of attorney drawn up under paragraph 3 of article 120, and ratification of notarial acts; c) Other separate instruments drawn up in more than one copy and which should not be registered in the books referred to in paragraphs d) and e) of article 10; d) Documents that are delivered to the office to be archived.

ARTICLE 19
(Book of registration of fee accounts and stamp) The book of registration of fee accounts and stamp is intended:
a) For the accounting of fees and stamp tax due for notarial acts and for the pages of the notary books; and b) For the registration of acts for which, due to total exemption of charges or gratuitousness, no account should be organized, noting this circumstance in a column, at the margin of the registration.

ARTICLE 20
(Book of registration of personal fees)
The book of registration of personal fees is intended for the registration of values collected and their respective distribution among employees, under terms legally established.

ARTICLE 21
(Numbering and identification of books)

1. All books have an order number, and the numbering is specific to each species of books.
2. When dealing with split books, each book will correspond to a letter in alphabetical order, and the numbering must be specific to books identified with the same letter.

ARTICLE 22
(Binding of books)

1. The notary books for various deeds, as well as the book referred to in paragraph f) of article 10, may be formed by fascicles or loose sheets or by using computerized means.
2. When books are formed by fascicles or loose sheets, they must be bound, after use, in a volume with a maximum of one hundred and fifty pages.
3. For cases of recourse to computerized means, when it is necessary to convert into physical support, the organization in volumes must also be adopted, with a maximum of one hundred and fifty pages.

ARTICLE 23
(Legalization of books)

1. No book may enter service without being previously legalized.
2. Legalization consists of filling out the opening and closing term, which will be entered on the first and last page, initialed on the remaining pages, and numbered on all of them.
3. In books formed by loose sheets or constituted by computerized supports, the closing term may be recorded when the book is concluded, and the numbering and initialing are done as the sheets become necessary for service, with the numbering preceded by the indication, on all pages, of the letter and order number of the book to which they refer.
4. When notarial acts are prepared using computerized supports, legalization will be done as the respective certificates are extracted.

ARTICLE 24
(Opening and closing term)
In the opening term, mention will be made of the letter, the order number, and the destination of the book, as well as the notary office to which it belongs; in the closing term, the number of pages of the book and the initialing used will be mentioned.

ARTICLE 25
(Numbering and initialing)

1. The numbering of pages may be done by any mechanical process, and the initialing by means of a stamp.
2. Exceptions are made for notary books formed by loose sheets, in which the use of a stamp is not permitted, and whose numbering, as well as the indications provided for in paragraph 3 of article 33, must be handwritten and entered until the signing of the acts.

ARTICLE 26
(Competence for legalization)
The legalization of books is the responsibility of the notary.

ARTICLE 27
(Legalization of books of special services)
In the services referred to in article 3, the books for notarial acts are legalized by the entities responsible for legalizing the other books existing therein.

INDICES
SECTION II

ARTICLE 28
(Preparation of cards)

1. In each notarial office, there shall be indices of grantors and signs, by the card system or onomastic verbets, which will be filled out daily.
2. A private index of wills and all acts relating to them must be organized.
3. Verbets of partition deeds or habilitation may reference the author of the inheritance in place of the grantors; those of deeds of constitution of a company or alteration of the social pact may reference the firm or name thereof, in place of the grantors; those of deeds granted jointly by husband and wife may reference only one of the spouses.
4. Verbets of justification deeds should only reference the justificants, and verbets of acts drawn up with the intervention of legal or voluntary representatives should only reference the represented.
5. The organization of indices extends to documents archived at the request of interested parties, to other documents registered in the book referred to in paragraph d) of article 18, and to powers of attorney presented to integrate or instruct some act, when their powers are not limited to the practice of the same.
6. The cards and verbets referred to in the previous paragraphs may be replaced by computer records, with the exception of those relating to the private index referred to in paragraph 2.

ARTICLE 29
(Cataloging and elements of cards)
Cards or verbets must be cataloged in alphabetical order and contain, at least, the names of the holders, the species of acts in which they granted, and the indication of the number of the book and pages in which these acts were recorded or the file in which the respective documents are located, when archived.

ARTICLE 30
(Sending of cards and copies of records to the Central Registry Office) Notarial offices will send to the Central Registry Office, on the first two business days of each week, a card of each testator or grantor, relating to public wills, instruments of approval, deposit, or opening of closed wills, deeds of revocation of wills, and renunciation of inheritance or legacy, which have been drawn up in the previous week.

ARTICLE 31
(Index organized by the Central Registry Office) It is the responsibility of the Central Registry Office to organize, in alphabetical order of the names of testators and grantors, a general index of wills and deeds referred to in paragraph 1 of the previous article.

SECTION III
Archives

ARTICLE 32
(Books and documents)

1. In addition to books and separate instruments that should not be delivered to the parties, documents presented to integrate or instruct the acts drawn up in the books or outside them will be archived in notarial offices, unless the law determines otherwise or only requires their exhibition.
2. In documents only exhibited, with the exception of those intended for the verification of the identity of the grantor and land cadasters, the date of exhibition, the notary's initial, and the white stamp of the notary office must be affixed.

ARTICLE 33
(Packets of documents)

1. Documents are archived, in chronological order of the acts they relate to or their presentation, in distinct packets, according to their species.
2. Private packets must be organized:
   a) With documents relating to acts drawn up in each notary book; b) With instruments of deposit of closed wills and powers of attorney for their return; c) With instruments of opening of closed wills, the corresponding wills, death certificates referred to in paragraph 1 of article 119 and paragraph 2 of article 140, and receipts of certificates referred to in article 210; d) With receipts of registration of notifications and documents relating to the protest service that must be archived; e) With other registered separate instruments, documents relating to them, and documents archived at the request of the parties; f) With duplicates of act participation