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Justice Makarau a captured judge or an independent and impartial judge, Mukoma Masimba asks

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On 14 October 2020, during the height of the pandemic, Mukoma Masimba, a member of the Justice Under Rule of Law (JUROL) who is based in Australia battled with the rationality of a judgment granted in relation to Zimre Holdings Limited (ZHL), a listed company on the Zimbabwe Stock Exchange (ZSE) whose control and direction was altered by a self-help scheme that received the nod by Justice Makarau resulting in him penning an article to express his embarrassment that a judge who took an oath to defend, uphold, respect and obey the Constitution would surrender her integrity and put the entire judicial system into disrepute without anyone noticing.

Q: What was the matter about?

MM: This matter involved 4 parties i.e. THZ Holdings Limited, a company registered in terms of the UK laws, ZHL, ZSE, and a creature of statute in the name of SMM Holdings Private Limited (SMM) under the control of a state-appointed Administrator, Mr. Afaras Gwaradzimba as set out below:

The two matters were consolidated into one matter. The Presiding Judge was Makarau J (as she was then).

Q: Is there anything unusual in the parties to the suit?

MM: Indeed there is. THZH is not a direct shareholder of ZHL and as such, I would be concerned that a grandfather of ZHL is a litigant in Zimbabwe in relation to the affairs of a grandchild, so to say. I am also surprised that the late Chris Andersen acted for Mr. A.M. Gwaradzimba (in his capacity as the purported Administrator of THZH), a UK-registered company.

The only explanation for this absurd construction is that what is prohibited by international law, which is a law of Zimbabwe, was permitted in this instance to allow a Zimbabwean law to have extraterritorial application.

I am still trying to understand the relationship between an Administrator appointed by a Minister and a company, a juristic entity that is a creature of law.

It is trite that the control and management of a company are vested in its directors, who are in turn appointed by its shareholders.

The effect of a reconstruction order is to divest and deprive shareholders and directors of the control and management of a company.

It follows that the administrator and directors are mutually exclusive. A company cannot have two centers of power.

What I have learned in our University of FOSMM platform is that a company without shareholders and directors is no company at all and this raises the question as to what becomes of a company whose shareholders and directors are removed as a consequence of non-judicial proceedings?

This is the question that I expected the Learned Judge to pose to Gwaradzimba when he purportedly published a notice in the local press announcing that ZHL was under his administration.

Below is an extract of the first paragraph of Makarau J’s judgment:

This was an urgent application. The transfer of control from directors and shareholders to a creature called an Administrator did not follow any due process of the law.

Q: If you were Makarau J, what would have been your immediate reaction to the fact that shareholders and directors of ZHL were divested and deprived of their legal nexus with the company in terms of The Presidential Powers (Temporary Measures)(Reconstruction of State-Indebted Insolvent Companies)(Regulations 2004.

A: I would have been outraged by Gwaradzimba’s audacity to approach a court of law after having engaged in a self-help scheme.

I call this self-help because he determined that ZHL must be placed under his control without notifying the affected company prior to the issuance of this extrajudicial order.

I would have interrogated Gwaradzimba to provide the legal authority that permitted him to issue a limiting order in relation to a juristic entity that is recognized as such by law.

I would have queried the legality of regulations overcoming the limitations imposed by the constitution that only judicial orders carry the limiting power in relation to the rights and freedoms of affected parties.

The decision by a judge to postpone a matter before the court is highly questionable and problematic.

I understand that during the court proceedings held last week, Makarau JCC was asked by Mr. Tichaona Mupasiri to explain under what circumstances a pedestrian like Gwaradzimba was able to enjoy the attention of the Court, especially having regard that he had no shareholding relationship with ZHL to permit the court to afford him any rights including that of postponing the matter to allow him to make any representations.

This to me constitutes a RED FLAG and exposes the Learned Judge’s partiality and disdain for the rule of law.

The legal and constitutional basis on which the Learned Judge made a call that Gwaradzimba should be joined in proceedings in which ZHL, Endurite, UKI, ZHL were interested parties baffles me.

Q: What is the significance of the ruling by Makarau J to postpone the hearing of the dispute brought by THZH to consider whether Gwaradzimba should be joined as a party?

MM: Makarau JCC already showed her hand by anticipating what would follow and did follow that Gwaradzimba notwithstanding the fact that SMM had no shareholding relationship with ZHL let alone Gwaradzimba had the authority and incumbency to act as a representative of a company whose control and management had been hijacked by an act of state.

What Gwaradzimba was asked to administer could not have been a company by any description?

A company is a creature of a Companies Act, which must be a law of general application. The whole reconstruction affair creates no company at all and as such a company indebted to a creditor, does not become a new creature that is recognizable in any constitutional republic.

As I will demonstrate in Part 11 of this conversation with a layman like me, I will demonstrate that Makarau JCC acted ultra vires the constitution and her oath by recognizing the authority of Gwaradzimba to act as a representative of a captured company.

I will also compare and contrast the attitude of Makarau JCC compared to how Mangota J acted when asked to confirm a reconstruction order that Minister Ziyambi had issued in relation to Hwange Colliery Company Limited (Hwangwe).

It is my contention that Makarau JJ had no jurisdiction to recognize and assert any purported rights that Gwaradzimba, in his capacity as a state organ, had in relation to the affairs of ZHL.

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MINISTER LINDIWE SISULU TO LEAD THE STATE OF WORLD POPULATION REPORT LAUNCH

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Minister Lindiwe Sisulu to lead the state of world population report launch focusing on the impact of unintended pregnancy in her capacity as the Acting Minister of the Department of Social Development, the Minister of Tourism – Ms Lindiwe Sisulu, will deliver a keynote address at the State of the World Population (SWOP) launch today, Thursday 23 June 2022, in KwaZulu-Natal.

Nearly half of all pregnancies, totalling 121 million each year throughout the world, are unintended. In Southern Africa, 65 percent of pregnancies between 2015 and 2019 were unintended and 36 percent resulted in abortion.

For the women and girls affected, the most life-altering reproductive choice – whether or not to become pregnant – is not a choice at all.

It is in this context that the Department of Social Development, in partnership with the United Nations Population Fund (UNFPA), is launching the State of World Population 2022 report focusing on the unseen crisis of unintended pregnancies.

Titled: “Seeing the Unseen: The case for action in the neglected crisis of unintended pregnancy”, the State of World Population 2022 report highlights the 121 million unintended pregnancies every year as a global failure of basic human rights, and a neglected crisis.

It reveals the scope and impact of unplanned pregnancy on women, girls, households, societies, countries, and global development.

The launch will take a South Africa-led multi-country format, which entails a dialogue with senior government officials, to be followed by youth engagement activities facilitated by young people from youth networks in the Southern African Development Community (SADC) region.

This engagement will be attended by SADC region dignitaries, and cabinet ministers from countries including Malawi, Zimbabwe, the DRC, and eSwatini. The Premier of the KwaZulu-Natal Province, Mr Sihle Zikalala, and the MEC of the Department of Social Development in the province, Ms Nonhlanhla Khoza, will also join the delegation.

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THE REPUBLIC OF SOUTH AFRICA TO HOST THE UNITED NATIONS 6TH INTERNATIONAL PARTNERSHIP FOR TECHNOLOGY IN PEACEKEEPING SYMPOSIUM

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The Republic of South Africa (RSA), as a Member State to the United Nations (UN) and a Troop and Police contributing country, has been nominated to host the 6th United Nations Partnership for Technology in Peacekeeping Symposium. The Symposium will be held at the Council for Scientific and Industrial Research (CSIR) International Convention Centre (ICC) in the City of Tshwane (Pretoria), Republic of South Africa from 21-24 June 2022. This is a key annual event in the provision of Technology to UN Peace Missions.

The Symposium is organized by the United Nations (UN), represented by the Department of Operational Support (DOS) and the United Nations Office of Information & Communications Technology (OICT) in cooperation with the Government of the Republic of South Africa (RSA). The RSA Defence Review 2014 militates for strategic shaping and influence through Defence Diplomacy

Attendees of the Symposium will include participants invited by the United Nations. These will comprise of Member States, Civil Society and Academia, UN Officials, International Consultants, Participants invited as observers by the United Nations and the Government of RSA including representatives from Inter-Governmental or Non-Governmental organizations or Institutions. It will bring together experts from Member States, Civil Society, the UN and its partners to explore innovative ways that can contribute to Peacekeeping using Technology as a catalyst. The symposium will also provide a forum to develop strategic partnership aimed at delivering tangible and sustainable outcomes.

The main purpose of the Symposium will be to align with key recommendations in the Strategy for Digital Transformation of United Nations Peacekeeping and to provide a communications platform that emphasizes cooperation as a key enabler of the organization.  Emphasis is put on tangible outcomes, optimization of Operational procedures and “know-how” transfer on the use of modern Technologies that are not yet included in the typical Peacekeeping Mission portfolio and will explore creative and collaborative opportunities to enhance Field Technology in the areas of;

•           Protecting Peacekeepers

•           Information-driven Peace Operations

•           Integrated Training and Capacity building

•           Eco-responsibility and;

•           Telemedicine.

South Africa will be the first African country to host the Partnership for Technology In Peacekeeping Symposium. Previous Symposiums were hosted by European and Asian countries. This is an important milestone for the African Continent. The symposium falls within the scope of the mandate of the General Assembly resolution(s) 46/48 of 9 December 1991, 48/42 of 10 December 1993 under which are Peacekeeping Training requirements and the use of Technology in Peacekeeping.

In June 2014, the Department of Peacekeeping Operation (DPKO) and the Department of Field Support (DFS) of the UN commissioned a “Panel of Experts in Technology and Innovation in UN Peacekeeping” to recommend ways in which the organisation could leverage Technology and Innovation to enhance its Operational effectiveness.

In the advent of the 4IR Industrial Revolution, the partnership for Partnership for Technology in Peacekeeping aims to extend involvement in Peacekeeping from the International Community through a comprehensive framework that can support collaboration and the introduction of modern technologies and concepts in Field Missions. The Symposium is designed to explore ways to support the UN Peacekeeping and the Field Operations community by leveraging cutting edge technologies to enable Military, Police and Civilian personnel in the face of critical challenges.

By hosting this Symposium, South Africa hopes to;

•           Promote locally developed Technology products,

•           Increase awareness of what RSA has to offer to the UN Missions and Member States Technology-wise,

•           Enhance the indigenous Defence Industries Capabilities at a United Nations-led platform that has Global reach.

Furthermore, this endeavour is also focused on generating interest for collaboration efforts in Technology Development with Strategic Countries in line with the Presidential campaign of attracting Foreign Direct Investment into the country.

The 6th United Nations Partnership for Technology in Peacekeeping Symposium local organisers and participants include, the State Security Agency (SSA), Department of Trade and Industry (DTI), Department of International Relations and Cooperation (DIRCO), Department of Science and Technology (DST), Department of Home Affairs (DHA), South African Police Service (SAPS), National Defence Industry Council (NDIC) and other participants.

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Ramaphosa officially opens SADC Extraordinary Summit of the Organ Troika of the Heads of State and Government

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The Extraordinary Summit of the Organ Troika of the Heads of State and Government of the Southern African Development Community (SADC) plus SADC Mission in Mozambique (SAMIM) Personnel Contributing Countries (PCCs) and the Republic of Mozambique, was held virtually on 12th April, 2022.

The summit was officially opened and chaired by His Excellency Matamela Cyril Ramaphosa, President of the Republic of South Africa and Chairperson of the SADC Organ on Politics, Defence and Security Cooperation.

The summit was attended by SADC Heads of State and Government, their representatives and members of the Troika of the Ministerial Committee of the Organ (MCO), Ministers from the SAMIM Personnel Contributing Countries, the SADC Executive Secretary and Head of the SADC Mission in Mozambique (SAMIM).

The progress of SAMIM was noted by the summit, as presented by the Head of the SADC Mission in Mozambique, and commended SAMIM leadership, including men and women on the ground for their sacrifices and commitment to the fight against terrorists acts in some parts of Cabo Delgado Province.

The transition of SAMIM from Scenario 6, (Rapid Deployment Capability) to Scenario 5 (Multidimensional Force), with a robust mandate was approved and the summit commended SAMIM Personnel Contributing Countries for their continued support by pledging capabilities and personnel to enhance the effectiveness of SAMIM operations, and urged Member States to continue supporting the mission.

The summit expressed its appreciation to the African Union (AU) and the International Cooperating Partners (ICP’s) for the support towards stabilization of the security situation as well as the socio-economic recovery and development of Cabo Delgado Province.

Expressing solidarity with the Republics of Botswana, South Africa, Kingdom of Lesotho and the United Republic of Tanzania for the demise of soldiers serving the Mission, the summit expressed words of comfort for those wounded in action.

The Republics of Zimbabwe and Malawi were commended by the summit for the spirit of solidarity expressed through delivery of the pledged donation of foodstuff in 3 support of Humanitarian assistance to the affected population of Cabo Delgado.

The Head of Mission was directed to coordinate with the Republic of Mozambique on the implementation of the comprehensive Integrated Reconstruction and Development Plan of Cabo Delgado.

The summit acknowledged the expression of gratitude by His Excellency Filipe Jacinto Nyusi, President of the Republic of Mozambique for SADC’s continued support, collaboration and cooperation towards attainment of sustainable peace and security in the Cabo Delgado Province.

His Excellency Matamela Cyril Ramaphosa, President of the Republic of South Africa and the Chairperson of the Organ on Politics, Defence and Security Cooperation, was commended for his leadership in steering the work of the Organ in pursuit of lasting peace, security and stability in the SADC region.

Mr. Tinashe Mpasiri and President Cyril Ramaphosa

Speaking after the summit, Mr. Tinashe Mpasiri, a member of Justice Under Rule of Law (JUROL), an initiative of the Banking On Africa’s Future (BOAF), said, “Peace is not simply about the absence of violence. It is defined by the presence of fundamental liberties and the prevalence of economic opportunities. Justice under rule of law is a step towards prevalence of economic opportunities. Absent the rule of law economic development is a mirage and it is the duty of the citizens to ensure that public office bearers who have taken an oath to uphold, promote and defend the constitution of the republic, are held accountable for their conduct.”

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