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Mukoma Masimba v Justice Makarau on Fit-4-Purpose re-Zimre Judgment

Walter Winchell

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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.

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