Mupasiri v Musengezi – The Untold Story about Musengezi’s Arrest

What makes the Musengezi and Mupasiri stories similar? The untold story is the relationship between the two that has yet to be unpacked.

The JUROL Investigative Journalism (IJ) sought to determine the similarities and differences between the two matters.

One of the IJ team stated as follows: “To me similarities are to be found in the common Respondent and common law firm used as the agent.

The Respondent is the President of ZANU-PF in relation to the Musengezi matter and in relation to the Mupasiri challenge, it was the President of Zimbabwe.

The President of ZANU-PF and Zimbabwe happens to be the person of H.E. President E.D. Mnangagwa.

In a constitutional dispensation, the President of Zimbabwe would be represented by the Attorney General in terms of s114 of the Constitution of Zimbabwe.

From what transpired in the Highest Court of Zimbabwe on 11 May 2022, it is obvious that although the Constitution prohibits the President from self-helping in relation to the appointment of his legal representatives, the Constitutional Court led by CJ Malaba already acquersced to the lawlessness implied in DMH acting for the President in the Mupasiri matter without the knowledge and involvement of the AG.

It is significant that President Mnangagwa in his opposing affidavit to Mawere’s application under Case Number CCZ 27/22 has asserted under oath that he was not involved in the appointment of DMH to act for him yet Mupasiri in his submissions to the apex court informed the Court with proof that he failed to serve his application on President Mnangagwa.

He raised the fundamental question to the court that it would be absurd to award wasted costs to DMH when in truth and fact, he as the Applicant had not served any papers on the President.

The question that then arises is whether the Court in judicial proceedings has been told the truth.

Turning to Musengezi who has been arrested for lying about his address, it is the case that the ZRP has acted.

What if the President has lied that he had personal knowledge of how the AG engaged DMH to act for him when no information has been placed before the Court supporting this version?

What Mupasiri asserted to the Court is that he personally served his application to the Second Respondent, Mr. Edwin Manikai, and then tried to serve the President personally but in vain. This led him to use the Sheriff on 20 December 2021 and in terms of the return of service that was filed of record in Court, the Sheriff also failed to serve.

Notwithstanding, on 24 December 2021, President Mnangagwa used DMH as his attorney and filed an opposing affidavit in his capacity as the President of Zimbabwe.

The record before the Court shows that Mupasiri had also not served the papers with the AG and it follows that on 24 December 2021, both the AG and the President had not been served with the papers.

It was Mupasiri’s version that to the extent that the President was not served with his application, the opposition was not authorized as prescribed by the Constitution.

He asserted that the President had acted ultra vires the Constitution to the extent that he unlawfully engaged the services of the very firm that is asserting through third parties that Musengezi is guilty of fraud.

Mupasiri asserted to the Court that on 27 December 2021, he wrote a letter to DMH challenging the legality of the opposition affidavit as it was fatally defective.

The letter was never responded to and he was surprised to receive a letter from the Registrar of the Court on 14 January 2022 giving directives for him to file his head of argument by 26 January 2022 before the issue of the legality of the opposing affidavit had been resolved.

In addition, he was advised that the matter had already been set-down for a hearing on 9 March 2022.

Against this background, he formally launched an application before the court challenging the President’s authority to challenge his application, and also sought the court to declare Manikai as unfit and improper to continue acting as a lawyer including challenging the agency of DMH in the matter.

This application was launched on 25 January 2022. He was then surprised to receive another letter from the Registrar of the Court advising him that an unnamed judge had issued directions whose effect was to exempt the President from complying with the rules by responding to the two applications that he had launched on interlocutory basis.

The second application was launched principally in terms of s62(2) of the Constitution requesting DMH to disclose the documents and related fees that the government has paid to the firm in relation to its agency on the SMM matters that the firm has exclusively acted on and in relation to his constitutional application.

He asked for reasons from the court for exempting President Mnangagwa from complying with the rules of the Court. The Learned Judge through the Registrar promised to furnish the reasons on the date of the hearing.

On 9 March 2022, regrettably, the reasons were missing in action. The hearing was postponed to 23 March 2022 and once again no reasons were furnished.

On this date, the CJ did not even want to deal with the question of the President’s locus to oppose his application let alone the jurisdiction of the Court to hear a matter whose opposition was ultra vires the Constitution.

Surprising the CC’s full bench agreed to postpone the hearing to 11 May 2022 without even dealing with the authority question.

It is understood that on 29 April 2022, Mupasiri filed a notice of withdrawal of his matter because he felt that the interests of justice would not be served if the non-compliance by the President was openly condoned by the Court.

He was left with no choice but to exit the process. DMH did not respond to his application for withdrawal yet during the hearing, it opposed the application and asked the Court to dismiss the application and for a punitive court order to be issued against Mupasiri.

The Court was put in a corner and the only way out was to strike Mupasiri’s application off the roll but surprisingly with an ordinary cost order.?

Mupasiri said: “I am still studying the legal and constitutional implications of this order. Clearly, the cost order is extremely prejudicial to me. The role of DMH and the legality of the President’s opposition to my application were not resolved.

If my allegation that the AG was not involved in the appointment of DMH to act for the President is correct, then it would be a travesty of justice to reward a trespasser with costs.

As a self-actor, I am still consulting on whether the Court could make an order of costs against me without determining the authority question.

The letter that an official of the AG was asked to write in January 2022 as part of a concealment scheme perpetrated by DMH exposed the fact that the AG had no knowledge of my application until the office received a letter dated 12 January 2022 from DMH.

I feel for Musengezi and I shudder to think what would have happened to me personally if I had pursued my application that exposes the fact that President Mnangagwa may have misled the Court on the AG matter.”

https://www.voazimbabwe.com/a/6565165.html