JUROL IJ – What constitutes Fraud on the Court? – When Justice Meets Accountability.

In this module, we deal with the issue of what constitutes fraud in the courts?

Having read Mr. Tichaona Mupasiri’s application seeking declaratory orders in South Africa following what he has learned from his constitutional application in Zimbabwe that the bond between President Mnangagwa and Edwin Manikai is thicker than water.

It is the case that in 2004, Manikai according to his version, a scheme was hatched that saw the demise of all the companies that were controlled by Mawere because of an alleged political fallout.

As a direct consequence of this, the control and management of SMM Holdings Private Limited (SMM) were divested by a decree that was promulgated using state of emergency powers.

The role of Manikai in this dispute is a matter that has eluded many because the version that was peddled was completely different from the facts that have now been uncovered in the quest to lay bare the true forces that were at play to allow this monumental decimation of so many juristic entities.

The issue that emerges from the impugned Jajbhay J judgment of 2007 in which Steelnet (Zimbabwe) Limited (Steelnet) was weaponized to be the Applicant in the application to wind up the affairs of Petter Trading Pty Limited (Petter), a key creditor of SMM, without disclosing the true nature of the forces at play involved in this cross border corruption syndicate.

From the facts, the tampering with the administration of justice as indisputably shown in the Mupasiri application involved far more than injury to the person of Mawere.

It is a wrong against the SA judiciary that was directly and maliciously orchestrated and prosecuted using the agency of DMH Attorneys.

A researcher who investigated the facts and circumstances that led the SA courts to be used as the ground to apply the Zimbabwean draconian law said:

“There can be no dispute that from the facts uncovered to date and ably placed before the SA court by Professor Mupasiri that the SA court has inherent power to investigate the role played by DMH ostensibly on behalf of the government of Zimbabwe in procuring a judgment against Petter for ulterior motives.

In this matter, Mupasiri was not a litigant in the dispute that was determined by Jajbhay J.

This matter is concerned about the feasibility of a collateral attack in reaction to a judgment because the rules of law applicable to the facts are patently in conflict with the justice of this instant case and the absurdity in the judgment granted by the Court a quo.

The question that arises is whether a collateral attack upon the Jajbhay J judgment can be made -either at law or in equity.

It is the validity of this that the purpose of the collateral attack seeks a declaration of its nullity.

There exist two grounds that customarily are assigned for a collateral attack upon a judgment: fraud and want of jurisdiction.

The facts of the matter show that the impugned judgment rendered by a competent court lacked jurisdiction.

It is trite that fraud vitiates everything, judgments included, into which it effectively enters.

A court of law may set aside its own judgments obtained by fraud upon itself.

The record of proceedings shows that there is justification in the approach taken by Mupasiri to attack the Jajbhay J judgment on the basis that it was extrinsic to the matters contained in the record and by reason of it the parties were not in pari dclicto.

The causa for the intended impeachment is that the facts that Mupasiri relies upon were not before the court or involved in the issue or matter upon which the judgment was rendered.”

The fraud in this matter lies in the presentation of the Steelnet matter as the Applicant in the cause was clothed like it was an ordinary juristic entity whose legal standing was akin to a juristic entity incorporated and operating in terms of the laws of Zimbabwe.

Plaintiff concealed the nexus between the strategy of the GOZ to quash the entire indebtedness of SMM to Petter by using the SA courts to divest and deprive Petter’s shareholder and directors of its control using the Insolvency and Companies Act as weapons.

The Court has inherent jurisdiction to set aside a judgment on the basis that it was procured by fraud from the court.

Fraud on the court claim hinges on the conduct’s effect on the judicial process-the fraud alleged must involve injury to more than a single litigant and must seriously affect the integrity of the adjudication process.

Because of the equitable doctrine, a court has jurisdiction to overturn settled judgments and orders at any time, especially in relation to the most egregious cases

This judgment had the effect of causing a grave miscarriage of justice by allowing a foreign state clothed as a company to apply its law in SA without any judicial notice and in violation of the laws of SA.

This was a deliberate and classic case involving a unique brand of deception, distinguishable from misrepresentation, misconduct, or fraud on an adverse party.

This type of fraud perpetrated openly by officers of court defiled the court “so that the judicial machinery could not perform” in its usual impartial manner.

The alleged fraud was not chargeable to an adverse party.

The impugned judgment was not merely the result of perjured testimony, but of a “deliberately planned and carefully executed scheme to defraud the court.