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Legal Literacy

State Capture in South Africa – Zuma versus the Judiciary – Where Do You Go When You Have a Dispute with the Courts/Judiciary?

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President Zuma (Left) and Justice Zondo (Right) - Picture Credit: timeslive.co.za

Brian Kazungu, 08/02/2021

In the twist and turns of the state capture drama which is continuously unfolding in South Africa, members of the public are suddenly being drawn into the discourse of civics matters on a daily basis as they are getting more informed on important issues of life in their communities.

The internet and social media has suddenly availed so much information to the common folk so much that they can now quickly check and trace what is happening with government resources even in the corridors of power.

One such issue at the moment is the issue of President Zuma’s refusal to appear before the Zondo Commission citing some irregularities in the Commission’s modus operandi and in even the basis and legality of its formation.

It has been argued in some circles that the formation of the Commission itself violated some provisions of the Constitution and as subtly hinted in the conversation below, Zuma’s appointment of Justice Zondo has been likened to putting a signature on a document when a gun is pointed on your head.

This conversation between a former lawyer Fredrick Kyle (Rikki) and a businessman (Mutumwa Mawere) is part of the legal literacy initiative of the Connections2Communities (C2C) community in search of a shared understanding on matters of interest to the community.

[2/6, 11:13 AM] Rikki: If your signature is on a document, but it was placed there with a gun to your head, it is indeed your signature. However, can one simply ignore the gun to your head because the first statement is true? In the absence of the real context, one can only make assumptions. No good comes from arguing on assumptions.

The scariest part is that despite us living in the age of information, we have never been so in the dark about this and even the Coronavirus.

 [2/7, 8:47 AM] Rikki: The doctrine of separation of powers is a fundamental cornerstone in the provision of the South African Constitution.

If one has a dispute with another, including the state, one goes to the Courts who are supposed to be independent and impartial to resolve such dispute based on the law’s prescripts.

Where does one go when you have a dispute with the Courts/Judiciary? In a constitutional system based upon checks and balances surely there must be a check for this? Who supervises the Courts/Judiciary to make sure they are doing their job correctly?

[2/7, 8:53 AM] mdmawere1: In this case, is it true and fact that the Public Protector issued an extra-judicial order whose effect was to divest and deprive the President of the power to independently appoint a Commission of Inquiry?

If so, did the Chief Justice act in terms of the limitations imposed on him and the judiciary by proceeding to nominate Zondo and for Zuma to be limited in choice to the names given?

Zuma tried to challenge the judicial overreach but the judiciary closed the doors on him and proceeded to give orders that were ultra vires the Constitution.

In this case the equality promise of the 3 branches of the government was undermined by the judiciary. Indeed given these facts, what are the lessons, if any?

[2/7, 9:03 AM] Rikki: This could never have happened if the three-sphere of government acted independently and in terms of their constitutional mandate.

The cunningness of these extra-judicial orders are that the Judiciary washes their hands in the process and then claims authority to continue to adjudicate matters in respect thereof as they are independent.

They did not issue the order.

Just look at what happened in SMM. When Willis allowed such conduct in a South African Court, it should have been a big red flag to the South African citizens about what the powers think of their Constitutional mandates and the citizens’ rights entrenched therein.

[2/7, 9:06 AM] Rikki: South Africa is no longer and in fact, has not been a Constitutional State for many many years.  So why does one try and resolve a dispute within a democratic framework, if it does not exist?

If the South African people do not step up to the plate and take control back, they will continue their demise.

[2/7, 10:27 AM] mdmawere1: Thanks for your insights. It is fact that the knowledge on constitutional matters is not commonly shared.

It could very well be the case that Madonsela could have been provoked by the evidence she had gathered that the relationship between Zuma and the Guptas was corrupt and as such in her considered opinion,  he was no longer fit to be President.

Having concluded in this question, she may have reckoned further was left for the judiciary except to convict him.

It is this arbitrariness and unilateralism that has characterised the real enterprise of justice delivery in many countries.

[2/7, 10:53 AM] Rikki: Irrespective of Madonsela’s views or consideration, the power to remove a President is not hers to exercise nor that of the Judiciary.

If either was moved to act because they believed that Zuma was not fit to hold the president’s office, they were not impartial and everything they have done subsequently flawed. The power to remove a President lies with the Parliament.

The real problem is as you correctly identified the arbitrariness and unilateralism.

I believe that the Judiciary, like all other spheres of government, should be independent of each other, act strictly following the constitution but most importantly, be transparent and accountable to the people of South Africa.

[2/7, 11:58 AM] mdmawere1: Thanks again for your useful insights. It appears that the ears to listen are few and far between.

What is the correct interpretation of the cause that says the President has the right to appoint a Commission of Inquiry? Is it a discretionary or qualified right?

Did Madonsela possess the power and authority to order that a commission be established fully cognizant of the reserved nature of the authority?

What should have been the attitude of an independent and impartial judiciary?

[2/7, 12:02 PM] Rikki: It is a discretionary power bestowed specifically by legislation on the President, and as such, it can’t be delegated. An independent and impartial judiciary would have struck down her recommendations as being ultra-virus and unconstitutional.

[2/7, 12:06 PM] mdmawere1: Does the recognition and enforcement of an illegality taint the integrity of the courts?

If this is not cured, what are the implications on the rule of law?

[2/7, 12:12 PM] Rikki: A very difficult but important question. Considering that a Court is supposed to determine lawfulness or not, it would seem that it won’t taint the integrity as a Court found it to be lawful. It goes back to my previous question, where do you go if you are not satisfied with the Court?

[2/7, 12:13 PM] mdmawere1: Then you are f****d or you need to start from the bush.

[2/7, 12:14 PM] Rikki: Then the check and balances contained in the Constitution is not working or merely a smoke screen?

[2/7, 12:14 PM] mdmawere1: This is scary

[2/7, 12:33 PM] Rikki: Indeed very scary. If any one of the spheres of government like in this instance becomes unchecked, democracy failed and one is no longer in a democracy state

Brian Kazungu is an Author, Poet, Journalist, and Technology Enthusiast whose writing covers issues to do with Business, Travelling, Motivation and Inspiration, Religion, Politics, and Communication among others. https://www.amazon.com/author/briankazungu https://muckrack.com/brian-kazungu http://www.modernghana.com/author/BrianKazungu [email protected] @BKazungu-Twitter He has written and published several books covering various aspects of human life including leadership, entrepreneurship, politics, personal development as well as poetry and travel. These books are found on Amazon https://www.amazon.com/author/briankazungu

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Corporate Literacy

PART 2 – MR SHAYNE KUNDAI’S UNDERSTANDING OF THE SMM STORY IN A CONVERSATION WITH PROF TICHAONA MUPASIRI ON 28 JANUARY 2028

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As part of a project to provoke, ignite and inspire fact-bases active citizenship under the Justice Under Rule Of Law (JUROL) initiative, in this story is Mr Shayne Kundai’s understanding of the SMM story in a conversation with Prof Tichaona Mupasiri on 28 JANUARY 2028.

Mr. Chin’ono is a respected journalist and the exchange in Part 1 of this addition to the SMM narrative adds to the confusion that provoked Mr. Mugore to express openly his wish that Mr. Mawere write a memoir to set the record straight hence the involvement of Mr. Kundai. 

Mr. Chin’ono stated as true and fact that:

“Surrogates were people like Mutumwa Mawere who was his front until they fell out.

Today surrogates refers to people like Kuda Tagwirei who has been a front for State looting using his myriad of companies.”

Based on the above and since 1996, the year in which the video relied upon to assert that Mawere was MNANGAGWA’S FRONT, a respectable journalist whose duty is to inform, educate and entertain the public, clearly premised his conclusion that MAWERE was MNANGAGWA’s surrogate on the unconnected and untested utterances made by MNANGAGWA in a public platform.

Mr. Mpasiri said: “It is this kind of reckless and malicious trophy hunting type of gutter journalism that provoked me to confront Mr. Chin’ono and his response was chilling as set out below:

“TM: Thank you for the honest response and obviously when I watched the video, I could not make the link between Mutumwa Mawere and the looting. 

Perhaps you can share evidence supporting the allegation of surrogacy and the corruption therefore in, so that I can afford both president Mnangagwa and Mawere to give their own account of the precise nature of the alleged link between public power and private benefit.

Unfortunately, the video’s content does not establish the causal link which is vital in determining any dispute in an Independent and impartial manner.

HC: I didn’t say Mutumwa was corrupt.

I said that there were public funds that were doled out which amounted to looting.

HC: You are misinterpreting what I said.

The video has nothing to do with Mutumwa being corrupt, it was meant to illustrate how public funds were looted way before sanctions.

TM: Thank you for clarifying and I am intrigued by your response. 

You have asserted as true and fact that Mawere was Mnangagwa front and this aspect is not self-evident in the video, suggesting that evidence exists that the alleged fronting you are talking about, is supported by concrete evidence which is required in any bona fide process, seeking to hold people accountable for their conduct or misconduct. 

I would be grateful if you can identify in precise terms what Mawere front for Mnangagwa.”

The above was unfortunately the end of the chat leaving any reader to question the basis on which a person like Hopewell operates. 

The view that Mnangagwa uses surrogates to allegedly loot public resources is not unique to Hopewell but to many compelling anyone to probe this question deeper than hitherto. 

Mr. Chin’ono was interviewed by the SABC on the subject of the war against corruption in Zimbabawe and he proudly shared the interview on this link with Me. Mpasiri: 

Mr. Frederick Koomson, Director of the Justice Under Rule of Law (JUROL) – Investigative Journalism (IJ) initiative said: “I am shocked if this criminality clothed as craft excellence exists and operates through Hopewell, then I shudder to imagine what is left of this glorious profession commonly described as the 4th State.

In this case, Hopewell maliciously imported a video into a narrative that he wished to peddle that Mnanagwa uses surrogates to prosecute corruption.

I have had a look at this interview and the inescapable conclusion Hopewell’s activism clothed as journalism poses so grave a threat to the rule of law that if nothing is done to hold him to account for not only putting the entire profession into disrepute but for undermining the public confidence in the profession as a guardian of the practitioners’ independence and impartiality.”

Hopewell Chin’ono, Award Winning Journalist & Documentary: 

Mr. Mpasiri, BOAF’s Director of Corporate and Legal Literacy said: “I had a no idea that even after exposing his fraud, Hopewell was blind to what actually had transpired when he sought to unashamedly deny what he had asserted as true and fact that Mawere was in 1996, Mnangagwa’s surrogate, only to deny having said this by accusing me of misunderstanding him.” 

Prof Tichaona Mupasiri (Photo Credit: WhatsApp)

Mr. Kundai them approached Prof Mupasiri, who in a landmark case under Case Number CCZ 34/21 approached the apex court if Zimbabwe seeking President Mnangagwa to account for his state of knowledge and involvement in the facts and circumstances of the reconstruction of SMM using extrajudicial means.

Advocate Jack Matiza, a member of the Friends of SMM (FOSMM), JUROL and BOAF initiatives aimed at promoting, protecting, and upholding the rule of law said: “After watching Hopewell’s interview on SABC that Hopewell had encouraged Mr. Mpasiri to watch and share, i understood why the memoir challenge should be a call to action for anyone who had hope that people like Hopewell could be relied upon to shape the personality and character of an open, accountable, transparent and alternative governance system, his conduct which is inconsistent with s2 of the constitution confirms otherwise.”

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Legal Literacy

A Judge Occupies a Special Position in Society (BOAF LAW) – Mutumwa Mawere

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The duty of a judge is to determine disputes based on facts or evidence adduced in court by parties who voluntarily present themselves before what should be an independent and impartial forum.

In many countries, they have a jury system where peers will determine the outcome rather than allow a single person presiding over the matter to be the sole determinant of a dispute.

The plan that we started under BOAF is aimed at promoting active citizenship based on a shared understanding that is premised on literacy.

There are far too many people who believe that civics is about the rights of citizenship and zero obligations.

However, Section 2(2) of the current Constitution of Zimbabwe imposes obligations that are binding on every person including you and me to UPHOLD, DEFEND, RESPECT, AND OBEY the constitution as the SUPREME LAW.

As such, any LAW, PRACTICE, CUSTOM, AND CONDUCT that is inconsistent with the CONSTITUTION is invalid to the extent of its INCONSISTENCY.

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Legal Literacy

Is judicial capture reality in Zimbabwe under President Mnangagwa’s watch?

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Is judicial capture reality in Zimbabwe under President Mnangagwa’s watch a question that top jurists who are reported to have been in Zimbabwe on a fact-finding mission are seized with?

Below is an article that is informed by the conduct of Makarau JCC who presided over an application for leave of court to intervene in an application launched by Mr. Tichaona Mupasiri under Case Number 34/21 in December 2021.

In this story, it is true that makarau jcc boldly maintains that the rights and freedoms of a specified person evaporate, and the right to access the court vanishes. do you agree?

Below is an article that speaks to the response of the SADC LAWYERS ASSOCIATION to concerns that Zimbabwean judges are not independent and impartial.

Now turning to PART ONE of the constitutional questions that arise from Makarau JCC, a specification order was issued in relation to untested allegations of corruption creates a legal disability that has the effect on a person so specified to have unfettered access to courts of law.

In the above-mentioned matter, a crooked Minister of Justice in the name of Patrick Chinamasa invoked the Presidential Powers that are reserved to deal with national emergencies to deal with the affairs of a private company, SMM Holdings Private Limited (SMM), falling what a prominent Zimbabwean lawyer, Mr. Edwin Manikai describes as a major political fallout that caused Chinamasa to invent a nexus between all companies deemed to be under the control of SMM’s ultimate beneficial shareholder, Mr. Mutumwa Mawere.

Chinamasa promulgated a decree on a Friday or 3 September 2004 under the title: RECONSTRUCTION OF STATE-INDEBTED INSOLVENT COMPANIES regulations and in conflict with the DOCTRINE OF SEPARATION POWERS gave himself exclusive jurisdiction to hijack the control and management of all the targeted companies without the involvement of parliament and the judiciary.

Set out below is an extract of Chinamasa’s affidavit in support of an application to sanitize his extrajudicial order with a veneer of a court’s blessing.

This application was made after the hijack was executed:

Imagine if one was an independent and impartial Judge, would this absurdity occur inside a court?

The control and management of SMM were placed under Chinamasa’s appointee on 6 September 2004 even though the Administrator’s official appointment letter was dated 14 September 2004, he dismissed the board on 6 September 2004 before his appointment.

The question that arises is the audacity that informed Chinamasa to prosecute this hijack without any concern about the possible non-cooperation of the judiciary.

This drama happened under the watch of the late President Mugabe. It is worth highlighting that Chinamasa’s application for confirmation was not handled by the Attorney General but by a private law firm, DMH Attorneys, that is acting for President Mnangagwa in the Mupasiri constitution challenge.

It can be noted above that the Minister’s ex-parte application for confirmation did not provide for any Respondent as the hijack was never meant to be challenged and the decree and subsequent law were framed on the basis that the hijack would never be reversible. This was the precursor to the Nov 2017 coup in which the judiciary played a complicit role to the same people who authored the Reconstruction Act and still remain unaccountable.

The address of service in respect of this application was not a government address or the Attorney General’s address but that of DMH Attorneys. What does this say about state capture?

Notwithstanding, the application for confirmation was granted without any judicial resistance notwithstanding the significant constitutional questions that this precedent suggests.

The facts in relation to the ZHL matter referred to above go as follows:

  1. THZ Holdings Limited had a direct and substantial interest in the affairs of its wholly-owned subsidiary, Endurite Properties Private Limited (Endurite), and had a direct and indirect interest in ZHL of 46.55% making it the largest single shareholder of ZHL, a listed company on the Zimbabwe Stock Exchange (ZSE)

2. On August 24, 2004, Chinamasa declared both THZH subsidiaries to be specified in terms of s6 of the Preventions of Corruption Act solely to ensure that access to justice was denied before this was called for. This all happened before the reconstruction decree was promulgated.

3. Mr. Reggie Saruchera, Chinamasa’s ally was appointed as the investigator in respect of the two companies.

4. As described by Makarau in her judgment, on 28 January 2005, ZHL held an EGM at which shareholders were to approve or disapprove of a proposed rights issue in the company at a time when the control of the affairs of THZH’s two subsidiary companies was placed under the control of Mr. Saruchera who had no power, right or capacity to substitute the rights of the affected companies as shareholders. Ordinarily, a specification order is an asset preservation order and rarely has a company’s control and management be divested using public power under the guise of fighting against corruption.

Two resolutions one SPECIAL and ANOTHER SPECIAL were to be considered without the knowledge and consent of ZHL’s shareholders.

5. The constitutional question that arises is whether a company whose control and management had been divested by an act of state can concurrently be placed under reconstruction pursuant to the use of public power to achieve both conflicting objectives.

6. The effect of a specification order in relation to a juristic entity has not been sufficient to allow for any definitive conclusion to be drawn on whether it was part of an organized and orchestrated scheme to use this novel route to achieve what expropriation of property rights delivers in relation totalitarian regimes.

7. What is clear is that there was no judicial resistance to the abuse of state power in divesting THZH of the control of its subsidiary companies. The specification order issued against Endurite and UKI was anticipatory and predatory as the events that unfolded confirmed Makarau JCC’s enabling role in delivering the promise of using state power for ulterior banking on a compliant and compromised judiciary.

Only Endurite and UKI had the right to vote at the EGM yet specification was used to deny the shareholders the right to reject the resolutions.

8. THZH believing the rule of law was applicable in Zimbabwe approached the Court in Case Number HC 542/05 seeking an order setting aside as invalid, the resolutions both special and ordinary on the legitimate grounds that such resolution would be dead absent the abuse of public power sanctioned by Makarau JCC.

9. Makarau JCC knew that Gwaradzimba was a creature of statute and permitting his application to be joined in the proceedings constituted an abuse of court processes in that an organ of state would assume with judicial tolerance rights that were directly derived from the abuse of public power to infringe on the rights and freedoms of bona fide shareholders.

10. It is significant that Makarau JCC was alive to the fact that Chinamasa’s extrajudicial notice did not refer to ZHL specifically but was intentionally manipulated outside the regulations to apply to this listed company by her.

11. Makarau JCC made an astonishing finding: “I am of the view that the acceptance of the situation by both ZHL and the state-appointed hijacker is proper and accordingly accept that ZHL is under reconstruction order issued by the Minister.”

12. If anyone had any doubt about judicial capture, what Makarau JCC said below is decisive and instructive:

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