Brian Kazungu, 03/02/2021
Being a businessperson and running the affairs of your own company can be the wish of so many people across the world but navigating the corporate world is an adventure that must be taken with some knowledge of business dynamics and an exposure to the accounts of those who have walked the path.
A critical understanding of what is a company and what it is not important in helping every entrepreneur to making informed decisions in the business world. Without such knowledge, as a businessperson, you are likely to labour under a mistake at your own expense and at the expense of your stakeholders.
More-so, it is equally important to have an understanding of international legal provisions when you do business in this global village because such an understanding helps you to make the right decisions when there is a dispute where your operations spans across two or more countries.
This is because many countries are governed by different legal provisions and thus when a dispute arises between companies in different countries, you must have an idea on how the laws of these countries will be applied in settling the dispute.
Another important element to consider in the corporate world is to understand what happens to the status of a company when there is a change of a law that governs it. Does the company still continue to exist or it becomes a new creature?
The following account or narration of what happened two companies in South Africa and a company in Zimbabwe is a befitting case study to the issues mentioned above.
It is a story told by Mutumwa Mawere as part of the Connections2Communities (C2C) initiative where corporate and civic issues are discussed so that people may learn from the experiences of others.
Mutumwa Mawere: “As background, three companies play a central role in the facts of the dispute. These companies are: 1. SMM Holdings Private Limited (SMM), 2. Petter Trading Pty Limited (Petter), and 3. Southern Asbestos Sales Pty Limited (SAS).
It is fact that Petter and SAS were incorporated and operated in terms of the laws of South Africa and as such they were South African corporate citizens.
SMM was a company incorporated and operated in terms of the laws of Zimbabwe making it a Zimbabwean corporate citizen.
SMM’s books and records as required by law were kept at the Registrar of Companies in Bulawayo.
Equally, Petter and SAS’ records were kept at CIPC.
It is a requirement that a company being a creature of law, should have its birth certificate and other records kept in a public place that is easily accessible to the general public.
To be a company, the entity must have a unique registration number. One can easily see what chaos can ensue if the birth certificates are messed up or duplicated.
No one can dispute that at the core of the dispute is the allegation that Petter obtained a judgment against SMM on 6 July 2004 permitting it to collect from export proceeds due to SMM from exports collected by SAS as its agent in the event that SMM was unable to make good on what it owed Petter in relation to goods sold and delivered by Petter to SMM.
It is not in dispute that at the material time, SMM owed Petter an amount of about R26 million. SMM could not remit the funds because of the interference by the RBZ that instructed SMM not to make any payment to any company associated with me.
SMM’s was forced to surrender its export proceeds to the RBZ at a fixed exchange rate resulting in the company getting the local currency equivalent.
As an example, if SMM received US$1 million, it would get Z$55 million at an exchange rate of US$1:Z$55, when the market rate was about US$1:Z$150.
This meant that if SMM wished to pay to Petter, it was impossible to get the US$1 million back from the market outside the directive by the RBZ.
This resulted in Petter not being to pay to its SA creditors in the ordinary course of business.
Dr Sanangura who was SAS’ Finance Manager at the material time explained to the Court that the cession agreement and the court order of 6 July 2004 were meant to protect Petter from its SA creidurors who were prejudiced by the actions of the RBZ.
Against this background, a plan was deviaed in Zimbabwe involving state and non-state actors to steal SMM by force of law.
In terms of the Companies Act, the control and management of a company is vested in its directors who are appointed by shareholders.
It was common cause that the three entries involved were under the ultimate control of me.
The Chairman of SAS and Petter when the court order of 6 July 2004 was Mr. Mariemuthu, who was only joined in the suit after its commencement.
The Chairman of SMM was Dr. William Mudekunye whose freedom and life was under threat in Zimbabwe as he was being accused of complicity in obtaining a fraudulent judgement to prevent export proceeds from being paid by SMM.
The claim was premised on the allegation that in relation to SMM, it was me who controlled the three companies and not their directors as per the prescripts of the law
The directors were regarded as puppets.
Without alienating me from the affairs of SMM, it was deemed that there was no way the alleged externalization or prevention of the flow of funds in lieu of the cession court order from SAS to SMM was to change the control and management of SMM in the first instance and then use the dismembered SMM to litigate against me in SA.
This is how the reconstruction decree was conceived and born.
As a consequence of the decree, an Administrator was appointed extrajudicially on 6 September 2004.
The question is what was the legal standing of SMM as at the time the directors of the company were dismissed by the operation of the decree?
In terms of the Companies Act, the right to appoint and remove directors is vested in the shareholders.
It is common that SMM’s directors were removed by the Minister without the involvement of the Court in Zimbabwe.
Public power was used to divest and deprive shareholders of SMM of the right to dismiss the directors of the company.
Absent consent, what follows is force and theft. The government acquired the right to choose to dismiss directors of a private company by virtue of the exercise of public power.
A law had to be created allowing the government to exercise jurisdiction over a private company in the case the company targeted was deemed at the sole discretion of the Minister of Justice to be not only state indebted but Insolvent.
Although the constitution of Zimbabwe provides for the equal treatment of creditors and debtors, this law violated this principle by purporting to make the state, an undefined creature, a party in the affairs of a company on the premise that a state controlled company like the electricity supplier, ZESA, was deemed to be the state for the purposes of giving life to the scheme.
In other words, it is law in Zimbabwe that if a company owes any funds in the ordinary course of business, this Reconstruction Act applies. It is significant that the law applies retrospectively.
The transfer of control from the directors of SMM to a creature of statute, the office of the Administrator, was done without the consent and knowledge of the rightful parties who were related to SMM.
The decision to strip the shareholders of the legal nexus to SMM was done in an open and brutish manner.
The question that arises is whether after the implementation of the reconstruction decree, what became the legal status of SMM?
In terms of the operation of the reconstruction decree, the company was referred to as a company under reconstruction akin to the nomenclature used in relation to a company under liquidation save to say that liquidation is provided for as a remedy following a company’s inability to pay its debts.
In relation to liquidation or judicial management, it is the court that has the discretion to order the placement of a company under a new regime.
This regime change has to be preceded by an independent and impartial determination of the existence of indebtedness and then the quantum of such Indebtedness which steps were not taken.
In fact, there is no provision in the decree for any involvement of the courts in determining the existence of Indebtedness prior to the issuance of an order.
It is also worth highlighting that the state is vested with the power to unilaterally and arbitrarily determine that a targeted company is indebted and proceed to issue an order that limits the constitutional rights of the affected parties.
Can a company whose shareholder are stripped of their inalienable rights be considered to remain a company?
In the same vein, can a human being stripped of his right to enjoy a relationship with his property and freedom to prevent draconian measures being applied to him be considered to be human in a constitutional democracy?
Al these events occurred in the territory of Zimbabwe.
Can Zimbabwean law have extra-territorial application? The answer is no.
In terms of international law, the Administrator’s powers was supposed to be limited in operation to the jurisdiction of Zimbabwe.
Absent authority, a company cannot act let alone institute legal proceedings.
It is not in dispute that the litigations in South Africa after the placement of the control and management of SMM under the control of the Administrator at the instigation of the Minister of Justice to whom the Administrator reported to.
This made SMM automatically an organ of the state of Zimbabwe.
However, the judgment sought and obtained in SA related to the affairs of a company called SMM.
The reality is that the SMM, the real claimant against the Defendants, was killed on 6 September 2004 by an act of state.
What followed is that it was the government of Zimbabwe using the company as a vehicle to directly claim on behalf of a company?
Against this backdrop, the decree clearly undermined public policy principles on which international law is premised.
In this case, the operation of the decree was exported to the territory of Zimbabwe with ease.
The SA Judiciary was used to recognize and enforce this draconian and satanic decree.
The question of judicial tolerance in the forum country comes to the fore.
Would you expect a forum country to recognize tolerate and give life to a law that offends its public policies? International law is clear on this issue.
Is the reconstruction law so iniquitous that it should be rejected as being law because it attacks doctrine of separation of powers and equality?
It is fact that before the judgment was granted, the Court a quo, the Judicial Services Commission, and the parties representing the government of Zimbabwe were fixed with the knowledge as to how the control and management of SMM was changed yet there was no judicial sanction.
On the contrary, the SA judiciary acquiesced and delivered the promise of injustice.
What are the facts that could have led the SA judiciary to be blind to the obligations placed upon it as the guardians of constitutionalism to end up being complicit in this travesty of justice.
It is law that a company’s authority can be recognized even if not supported by a resolution of directors appointed by shareholders.
It is now law that a foreign law that offends the constitution of SA can be recognized and enforced.
Ordinarily the Willis J judgment would be considered as falling outside the four corners of legality in that it awarded a monetary judgment to a party disguised as a corporate entity when in truth and fact, what was before the Court was an organ of state.
It would be absurd to imagine SMM suing its own shareholder and the fact that this matter was successfully prosecuted by SA courts must mean that something is fundamentally flawed in the administration of justice in SA.
How many other cases of similar nature have been processed with impunity in SA?
I would be grateful for any comments that may flow from the above. Learning has no limits.”
IDC’s Tshepo Ramodibe Cornered
In a remarkable development, IDC’s spokesperson, Mr. Tshepo Ramodibe, who was quoted in an article published by the Sunday World in relation to a judgement granted by Judge Motsamai Makume on 23 March 2022, in which he confirmed that, it was the IDC, a public institution, that had initiated the the litigation.
In a new twist, when Ramodibe was confronted to provide evidence that the litigation was authorized by the IDC and the use of public funds was justified, he threatened this publication, was evasive, abusive, refused and failed to provide the basis of the authority relied upon to prosecute the claim.
A dispute was registered as to whether a presiding judge could discuss a rescinding application without dealing with the challenge of IDC, Plaintiff’s authority to litigate in the case 13276/14.
The suit was instituted by IDC in the high court of South Africa South Gauteng Local Division. In relation to this challenge on authority, it would appear it has taken IDC eight years to furnish the resolution binding this public institution to this litigation.
Mr. Peter Smith said, “what is puzzling about this matter is that IDC commented about a judgement in which Mr. Tshepo Ramodibe could not supply the impugned resolution. This raises a question of how public funds can be used for litigating a matter without the public institution, obeying the law. Rule 7 (seven) is a rule of court that provides for a litigant to challenge authority and therefore place a bar or any next step be taken prior to a court of law granting leave or being satisfied that the challenging authority does exist. Having looked at the record of exchanges between the reporters of IniAfrica.com with Mr. Tshepo Ramodibe, the inescapable conclusion is that IDC and its attorneys Werksmans, clearly have no obligation to observe the law and rules of court because after seven years, IDC has failed, refused and neglected to play its part in complying with this requirement.”
Ms. Lara Geach said, she found the exchange between Mr. Tshepo Ramodibe and Mr. Peter Smith not only interesting, but thought provoking if not classic and below is the said exchange:
|Tshepo Ramodibe||Mon, 4 Apr, 17:47 (20 hours ago)|
|to firstname.lastname@example.org, me, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, Media, Chimwemwe, Tebatso|
Please note that I have no concerns about the call made which was intended to get clarity on what was unclear in the emailed responses. All that is on record is a summation of the court ruling that confirmed the ruling court against the applicant.
The media is well aware of the matter and related court rulings. I suggest that any further enquiries in this regard be directed to appropriate legal platforms. The Judge and court that made the ruling is best placed to address any queries you may have.
I take confidence in the responses furnished by the IDC, as a public institution. Our Legal team and attorneys in the matter will guide any further interactions with your publication.
|Tshepo RamodibeTshepoR@idc.co.za011 269 3106Head: Corporate Affairswww.idc.co.za0829910851Corporate Affairs|
From: firstname.lastname@example.org <email@example.com>
Sent: Monday, 04 April 2022 17:17
To: Tinashe Mpasiri <firstname.lastname@example.org>
Cc: Tshepo Ramodibe <TshepoR@idc.co.za>; email@example.com; firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com; Media <Media@idc.co.za>; Chimwemwe Mwanza <ChimwemweM@idc.co.za>; Tebatso Mokgoro <TebatsoM@idc.co.za>
Subject: Re: [External Sender] Re: IDC V MAWERE & OTHERS
Dear Mr. Ramodibe,
I have been briefed by Mr. Mpasiri and I have listened to the audio of the conversation.
I am astonished that you refused to provide the required information for us to complete our work in the public interest.
Your comments are in the public domain about a judgment on a dispute that the IDC is being called upon to provide as required by the Constitution.
I need not remind you of the provisions of PAIA that provide for the open and unfettered disclosure of information in your possession when requested to provide it.
I need not remind you that s9(a) of PAIA gives effect to our constitutional right to access any information held by the State subject to the limitation in terms of s(9)(b)(i)(ii).
I am sure you will agree that s9(d) provides for the establishment and mandatory mechanisms or procedures to effect our right to access the requested information in a manner that enables our media platform to obtain access to records of a public body like the UDC swiftly, inexpensively and effortlessly as reasonably possible.
As you correctly stated, the judgment is in the public domain and such
s9(e) is instructive in that the requested information is beneficial to promote transparency, accountability, and effective government of public institutions by including but not limited to empowering the public and raising literacy on civics so that victims of injustice can exercise their rights in relation to public bodies like the IDC.
You will not doubt appreciate that our staff as citizens are under pressure to interpret the import of the judgment especially when regard is had to the fact that IDC does not advance credit to the retail public especially persons of foreign nationality.
We are at pains to understand the relationship between the IDC and the person of Mr. Mawere.
We also need to understand the functions and operation of IDC, especially with regard to the burning issue of authority so that the public can effectively scrutinize, and participate in, decision-making by public bodies like the IDC that affect their rights.
One of the questions that have been raised is whether persons of Zimbabwean heritage who are not eligible for BEE status can borrow from the IDC. This question is of significance because we have 28-year-old South Africans who were born in South Africa and are desirous of accessing credit facilities from development finance institutions.
Your tone in the conversation with Mr. Mpasiri was not only condescending but arrogance as if to suggest that a judgment granted in IDC’s favor should only be subjected to scrutiny in the courts when you were at liberty commending on the same.
I find it strange that when provided with the information regarding why Mr. Mawere could not have attended two hearings at the same time, you chose to attack Mr. Mpasiri’s bona fides and effectively the integrity of our platform.
I am writing this letter if you know where we are coming from as we believe in using the media to promote a culture of accountability and transparency.
I am still not sure why you called Mr. Mpasiri rather than respond to the questions that are critical for any reasonable person to establish whether the impugned judgment was tainted by fraud or not.
I have attached a letter addressed to Dr. Sanangaura dated 1 March 2021 seeking the same information that we sought from you today. Surely, logic dictates that it would not take more than a year for you to answer a simple question on behalf of a public body whether the IDC had authority to institute proceedings that relate to the Makume J judgment or not.
I look forward to your urgent response.
Mukoma Masimba v Justice Makarau on Fit-4-Purpose re-Zimre Judgment
Please enjoy the Q&A between MM and Justice Makarau.
Q: Why throw a race card in your letter to Lord St Johns of Bletso?
A: The deafening silence of the UK government on the hijack of subsidiaries of two UK registered companies, SMM Holdings Private Limited (ZHL) and THZ Holdings Limited (THZH), is striking.
In the Zimre Holdings Limited (ZHL) matter, the only weapon that was used as the reconstruction act to link the company to Mawere, their target of attack.
THZ Holdings Limited (THZH) had no legal nexus with SMM Holdings Private Limited (SMM), the company was alleged to be indebted to the state when in truth and fact this was a total fabrication.
It is interesting that the crafters of the reconstruction decree introduced a self-serving close solely meant to catch all Mawere’s interests in one basket.
The decree introduced the idea of an associate deemed to be any company associated with SMM to be also a target for the hijack.
ZHL’s two shareholders, Endurite Properties Private Limited (Endurite) and UKI Private Limited (UKI) including ZHL itself were all deemed to be under Gwaradzimba’s control.
What is remarkable is that the Minister did not mention by name these entities but left this to the discretion of Gwaradzimba, a non-state actor?
It was Gwaradzimba who exercised discretionary power that fell outside the ambit of the decree.
In terms of the decree, it was only the Minister who could issue a reconstruction order in relation to a company that was purportedly indebted to the state and found by the same Minister to be insolvent.
In this case, no order was issued against ZHL by the Minister and more importantly, Gwaradzimba had no title to issue any limiting order to any company.
As a consequence of the Makarau JCC judgment, ZHL’s control and management were changed and THZH’s links with the company were terminated in court.
I shudder to think what would have been the case if the shareholder of THZH and SMMH were white persons or white-controlled entities.
Would the attitude of the UK government have been the same?
Clearly not. When people say BLACK RIGHTS DON’T MATTER at all in the UK, it is not a joke.
I should like to believe that the only plausible explanation why the British embassy is silent is because of the race issue.
Q: Do you think that Makarau JCC understood the constitutional issues inherent in her judgment?
A: On one hand, I am tempted to believe that she didn’t and probably thought that what was at play was a case of some judicial management in which an Administrator assumed the powers of a judicial manager.
On the other hand, I think she had constructive knowledge of what was at play and she must have known that she had no title to recognize the authority of an Administrator that was appointed outside the perimeter of legality.
No judge has the discretion to confer rights that the constitution prohibits.
The right to control and direct a company is a constitutional one and Makarau JCC’s recognition of Gwaradzimba’s order went beyond what any judge is permitted to do.
In addition, Makarau JCC knew that the intended corporate action involved the discretion of shareholders of ZHL and as such, she had no title to authorize the substitution of shareholders who should have participated and voted at ZHL’s extraordinary general meeting.
The protection of property rights that is enshrined and entrenched in the constitution was undermined and betrayed by Makarau JCC and she got away with this.
Q: What is your take on President Mnangagwa’s reliance on fatally defective judgments like that of Makarau JCC to assert that the reconstruction affair in relation to SMM was properly implemented?
A: I can understand President Mnangagwa’s position only if he was involved in the project to divest Mawere of his assets using public power.
No independent and accountable President would not act against dangerous judges like Makarau JCC unless he has vested interests in the outcome.
I have been following closely President Mnangagwa’s attitude on Mupasiri’s impeachment application and there is no doubt that he is implicated and fully associates himself with judgments that were sought and granted outside the boundaries of constitutionality.
As Justice Makarau got offended by Mupasiri’s court submissions, justice may be the victim
On Thursday, 3 March 2022, Justice Makarau was offended that Mr. Tichaona Mupasiri, the applicant in the unprecedented application to hold President Mnangagwa to account in an honest and transparent manner for his alleged role and knowledge in relation to the facts and circumstances that triggered the use of Presidential Powers (Temporary Measures) as a weapon to attack the rights and freedoms of the shareholders of not only SMM Holdings Private Limited but a host of other juristic entities.
The heated exchange between Justice Makarau followed Mr. Mawere, the Applicant in the matter under Case# CCZ 11/22 for the recusal of the Learned Judge on alleged bias in matters that are cogent in the Mupasiri application.
At issue is whether the allegations made by Manikai, who is President Mnangagwa’s close ally and confidant apart from his legal advisor, on 27 March as follows were true and factual but to date, the President has chosen to fully associate himself with Manikai’s predicament as a professional lawyer who independently of President Mnangagwa took an oath to promote and protect the Constitution.
“I am perturbed that my President would openly and brazenly associate himself with a judge who in her judgment stated that she did not owe a duty to her oath by knowingly and intentionally refusing to consider the merits of the dispute that was brought before her on the assumption that she was an independent and impartial mind,” said Mr. Collins Charumbira.
Mr. Charumbira did not have any good words to say about Manikai, who he claims blocked him following an inquiry about the facts that were shared in the FOSMM group to the effect that Manikai is a person of interest in unpacking the facts and circumstances that led to the demise of SMM in 2004 following the use draconian manner in which public power was used to alienate the shareholders of companies that were providing jobs and income to thousands of Zimbabweans.
Manikai arrogantly told Collins to mind his business and never contact him again alleging that he was sent by Mawere to harass him over what he regarded as some “spilled milk.”
Collins said: “I am very encouraged that Mupasiri has taken the search for the truth forward and this dispute has migrated from chat groups to an arena that is provided for in the constitution.
I had no idea what the s167 remedy and I had already surrendered to my comfort after Manikai rebuffed my bona fide attempt to establish how he personally got involved in attacking Mawere, especially having regard to the objective facts that absent Mawere’s financial and moral support, the firm that President Mnangagwa is using to defend himself, DMH, would not be a reality.
Manikai tried to use the attorney to client privilege to avoid addressing my questions regarding his seminal role in prosecuting the reconstruction or destruction measures against SMM.
I am following closely this matter but I am increasingly convinced that President Mnangagwa may be a pawn in a game that Manikai authored for political expediency.”
The President and Manikai were represented by a junior attorney working for DMH in this application.
At the previous hearing, he told Justice Makarau that he had been instructed to oppose the recusal application by both his clients i.e., the President and Manikai.
Although Mupasiri had sought no relief against Manikai, Manikai has opposed his application.
“What I know is that there can be no justice without the truth in it.
What is troubling me is that no lawful would be blind to obligations imposed upon him or her, to tell the truth. When I wrote a letter to Manikai on 8 November 2021, I naively thought he would welcome my gesture by cooperating with the search for justice under the rule of law, but what I have been able to gather is that he behaves like a warlord who believes that he is UNTOUCHABLE.
It is striking that Manikai like Temba Mliswa believes that President Mnangagwa is the law or he is above the law and as such my application is an attack against the person of President Mnangagwa when he triggered and provoked me to be angry.
The more I learned about the SMM matter, the angrier I got but what has disturbed me more is that there are far too many people who excel at pontificating in chat groups without taking any steps to assert the rights that are enshrined and entrenched in the constitution,” said Mr. Mupasiri.
He continued to state as follows in relation to his experience on Thursday when he appeared before Justice Makarau’s case: “When Mawere launched his recusal application, I had taken this matter to be a third party cause and as such, all I needed to do was to focus on my application.
I did not oppose the relief Mawere sought because I genuinely believed that the intervention of the parties with knowledge would be helpful and beneficial to the court in resolving my cause of complaint.
I came to court with this understanding and background including my own curiosity as to what interest if any, would a President have in sticking to Justice Makarau as the only judge who can determine the application by Mawere for leave to intervene in my application.
Justice Makarau opened the hearing by establishing from the litigants in what capacity they were in court.
I told her that I was the main applicant and also that I was a self-actor.
Mr. Mawere was the first one to be asked to make his submissions. He was eloquent and on point. I was impressed by his understanding of the rules of court, his submissions regarding his objection to Justice Makarau’s involvement in any matter that she has already made judicial findings, and his unique ability to connect the dots.”
Mawere was followed by Mr. Gondogwa who appeared on behalf of the Respondents.
This is my first time to appear in court as a self-actor but what happened since Thursday, 25 February 2022 when Justice Makarau gave directions as to how the recusal application would be processed, I was surprised that the lawyers representing the President would proceed to intentionally sabotage the litigation.
The President and Manikai knew that they had to file their answering affidavits by close of business to allow Mawere to respond by close of business on Wednesday.
I was only served the opposing papers on Tuesday afternoon and Mawere was only served the papers on Wednesday morning after protesting to the Presiding Judge.
The explanation that Gondongwa gave that their messenger could not find the address did not make sense but this was meant to frustrate the process.
I was pleasantly surprised that Mawere managed to serve an answering affidavit that dealt with all the allegations made by the Respondent.
Accordingly, I was comforted that the Judge would at the very least reprimand DMH for failing to adhere to her directions but alas she said nothing at all.
I was also a recipient of Mawere’s letter to the Registrar to ask if the Learned Judge could postpone the matter to allow him to still get the 2 days allocated for him to respond.
The Learned Judge took the decision to completely ignore the request.
After Mawere’s brilliant submissions, Mr. Gondongwa on behalf of the Respondents did his best to divert the court’s attention in order for the recusal application to be dismissed, I was then asked by the Learned Judge to indicate whether I wished to say something regarding the recusal application.
The Learned Judge asked me to identify my interest in the dispute. I told her after reading Mawere’s application and his oral submissions, I wanted to zero in on two issues.
The first one was regarding the legality and constitutionality of a reconstruction order that was issued by Gwaradzimba in his capacity as the Administrator of SMM under circumstances that clearly offend the rule of law.
Below is the first paragraph in Justice Makarau in relation to the review application that she capriciously dismissed that was launched by the Second Intervening Party or THZ Holdings Limited (THZH), the company that had a direct and indirect shareholding in Zimre Holdings Limited (ZHL) of about +46%, trying to assert its rights in relation to the recognition of Gwaradzimba as an Administrator of Zimre.
I was shocked that Justice Makarau contrary to the version given by President Mnangagwa in his opposition to my application that judges like her had determined the SMM reconstruction disputes in an independent and impartial manner, Justice Makarau had recognized and enforced flowing from Gwaradzimba’s purported order that was published in the local press announcing that Zimre, a listed company with other shareholders, was under his control and management.
Astonishingly, Justice Makarau admitted Gwaradzimba pursuant to an order that he authored as a party to the proceedings that should have been limited to parties with bona fide interests in the affairs of Zimre.
Not only did Justice Makarau clandestinely abuse her discretionary powers as a Judge to give the audience to Gwaradzimba, a creature of an act of state, she also gave him an order to control the destiny and fate of Zimre.
Surprisingly, she even had forgotten this travesty of justice that was orchestrated by her inside the court.
This knowledge alone created a real and not some abstract apprehension of bias allowing me to tell her from the bar that she is not fit to preside on the application for leave to intervene if in the part she had illegally given Gwaradzimba rights which no law permitted a judicial manager to possess.
It shocked me that according to Makarau, reconstruction was akin to liquidation when this is false and was solely intended to justify the theft of private assets using crooked judges as instruments or weapons to undermine the rule of law.”
The link to the notice referred to in Justice Makarau’s judgment is provided here: https://online.flipbuilder.com/mmawere/sdci/.
Below is a link to the full Zimre judgment: https://online.flipbuilder.com/mmawere/sdci/
Either the President knowingly and intentionally orchestrated the corporate coup and used his power and influence to procure fatally defective judgments by judges like Makarau or his power and authority were abused without his knowledge.
Mupasiri has given President Mnangagwa and Manikai to come clean and lift the lid that has been put by Manikai’s over the President’s head but it would appear that both persons do not believe that they are accountable to the constitution.
[0:27 pm, 05/03/2022] mdmawere1: Holding the powerful accountable
Cover up – hide – it is not just about SMM but about a broken system that will never get better when the sense of morality has shifted to condoning despicable acts.
Mr. Lonely Jeketera, a member of FOSMM and JUROL, who is a Business Consultant specializing in Company Registrations, Tax Advisory, and Human Capital Practice stated as follows: “I attended the recusal hearing before Justice Makarau and I was encouraged by the boldness of Mr. Mupasiri and his eloquence in asserting that the recusal application is key to the just and proper determination of his application that is pending before the court.
I had no idea that the judgments that President Mnangagwa relied upon included Justice Makarau’s judgments that she openly admitted were not determined on the facts placed before her court but on other considerations.
I have always wondered how THZH lost its shareholding in Zimre but now I can connect the dots as it is clear that Gwaradzimba used Justice Makarau as his weapon to create a nexus that did not exist to substitute shareholder rights with a creature of statute whose relationship with Zimre was recognized and enforced by the Court disregarding the constitutional rights of the parties involved.”
Mr. Tinashe Mpasiri, a director of TAP Building Products Limited (TAP), and a member of both FOSMM and JUROL had this to say:
“I have privilege as a person who corporate and financial knowledge to know that RECONSTRUCTION is not akin to LIQUIDATION as incorrectly asserted by Justice Makarau in her Zimre judgment.
Astonishingly, Justice Makarau is not the only one whose literacy on the legal and constitutional basis in which liquidation takes place and the key distinguishing features of extrajudicial self-help schemes like Reconstruction with liquidation or receivership, as even the Attorney General, Mr. Prince Machaya holds the same views as follows: https://www.herald.co.zw/hands-off-hwange-parly-told/.
It is striking that we have encountered the level of gross illiteracy in Zambia wherein a crooked judge called Kajimanga J (as he was known in 2006) held the same view that reconstruction was akin to receivership and as such he granted a judgment tainted by fraud to his court and fraud he assisted inside his court.
The judgment was used by Gwaradzimba and Manikai to steal about $1 million in Zambia.
When I spoke to Gwaradzimba recently, he like President Mnangagwa sought refuge in the decisions of courts that have been used as vehicles to commit fraud with impunity.
I had no knowledge of how deeply rooted corruption is under the watch of President Mnangagwa until I read his sworn statements in opposition to the litigations pursuant to the Mupasiri application.
As a director of TAP, I am tired of negotiating the end of corruption when the 2013 Constitution is instructive that I have an obligation to lift my voice against judges who abuse the trust bestowed on them by law.
I also have a duty to step forward so that the promise of equal protection before the law and the reality that each person has a right to benefit from the equal protection of the law.
I got the distinct sense from Gwaradzimba that he thinks that the limitations imposed by the Constitution do not apply to him and his political Godfather.
Manikai is bound by the same rules that others are duty bound to follow. It is not in dispute that DMH using the Reconstruction Act as a weapon, instructed a Zambian law firm, Mulenga, Mundashi Legal Partners (MMLP), as a corrupt bridge prosecuted a fraudulent claim that TAP was an associate and is doing, obtained a fraudulent judgment that was used to justify the undisputed payment of $127,346.10 by TAP to MMLP when there existed no legal causa for this unjust enrichment.
The Court has not been furnished with all the pertinent facts to determine who was in and out of this orchestrated state capture enterprise in Zimbabwe.
An incriminating narrative has been made by Manikai, a practicing attorney, that all the judges that handled SMM’s reconstruction matters were captured or behaved like robots.
Manikai possesses all the records and it is now common cause that President Mnangagwa who has admitted for the first time that he was fully briefed on the SMM heist and yet he seems to have the protection of the court in keeping mum on what is known to him and disclosing the who is who in the value chains that led to the demise of SMM and other enterprises.
In Zambia, Manikai did not follow the rules but he is not subject to Zambian laws although the crimes against TAP were committed within the borders of the country.
A big lie that Mawere had externalized funds and went to exile with the alleged loot was solely a smokescreen to steal with the knowledge of Zimbabwe’s first citizen, President Mnangagwa.
As an active citizen, I was fortified to also step forward and approach the Court on behalf of TAP and my personal behalf to seek to hold Manikai accountable for the invasion of Zambian jurisdictional space, attack the courts of Zambia, and finally obtain a judgment tainted by fraud.
The fraudulent judgment was used to siphon funds from TAP. President Mnangagwa under oath is not ashamed to use a law that poses so gave risk to the integrity of his administration yet pretends to be the champion of anti-corruption initiatives in Zimbabwe.
It is the blatant attempt to defend the indefensible that shakes my sense of knowing what is right or wrong. I am no longer afraid to call Manikai out for who he is. There are far too many people who are gullible enough to believe that reconstruction was triggered by SMM’s alleged state-indebtedness when in truth and fact the people who claim to be servant leaders are the authors of a vicious attack on the rule of law.
The discourse that should follow the tone and language adopted by President Mnangagwa is scary to me as it suggests that the whole system of governance has irreparably broken down and I am not prepared to go down and sink with these people.
As I listened attentively to the court submissions in the recusal hearing, I could not help but reflect on the meaning of a President who took an oath to protect and uphold the rule of law intentionally seeking to protect Manikai’s actions from public scrutiny.
This to me is a red flag that it will be impossible to unearth and the most unlikely person to seek to conceal the truth from the Court is my President who should suffer no personal prejudice if the truth is openly disclosed he state of knowledge and involvement in the saga.
The refusal and failure by the President not to distance himself from Manikai.
To the extent that the SMM problem just gives us a glimpse of what really takes place in the corridors of public power, this chilling evidence is a pointer to a larger governance national challenge that speaks to a new morality index that violating norms is fine and openly defying tradition, the constitution is perfectly okay and more significantly that the justice system is now an enabler to allow the corrupt to get away with it.
I am concerned that there will never be accountability and transparency if the evidence is constructively placed beyond the ears of the courts as seems to be the case in this matter.
It was clear from the demeanor of Justice Makarau that her court is paralyzed and it is part of a project that involves a conspiracy of many actors in the chain to prevent any investigation from being instituted by President Mnangagwa or by the courts to ensure that the Mupasiri dispute is determined on its merits.”
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