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A new twist in the Judge Patel & Mupasiri contempt saga

Peter Smith



In a dramatic response to Mupasiri’s refusal and failure to apologize as ordered by Justice Patel on 19 September 2022 for complaining that the conduct of the Constitutional Court including Justice Patel confirmed his apprehension that the court is captured, the Constitutional Court rejected Mupasiri’s application in relation to a matter under Case Number 27/22 in which Mawere & Others are challenging President Mnangagwa’s conduct fof directly outsourcing his opposition to the Case Number 34/21 that was launched by Mupasiri to hold President Mnangagwa to account for his state of knowledge and involvement in relation to the reconstruction of SMM Holdings Private Limited (SMM), a company whose control and management was extrajudicially divested and deprived.

According to Mupasiri, notwithstanding the fact that his application was informed by a constitutionally imposed obligation to subject the President to account for his role in this dramatic disguised expropriation without compensation enterprise ever prosecuted against person’s using public power.

President Mnangagwa admitted in his opposing affidavit that he was briefed on the affairs and circumstances of SMM’s alleged indebtedness to the state and more significantly that contrary to a foundational value entrenched in s2(1) of the Constitution that this constitution is the sepreme law of the country and any law that is inconstant with the constitution, is invalid to the extent of its inconsistence, he owes no duty to his oath but the law.

Mupasiri’s grip started when he was surprised that President Mnangagwa had opposed an application that the Sheriff in his return of service had not been able to effect service on the President had been enrolled for a hearing when the rules of court do not allow for the enrollment of any matter without satisfying the rules of service.

In this matter, there is no dispute that the President did not receive the application and as such any independent and impartial court would determine a dispute without the parties being served of the papers.

What seens to have happened in this bizarre matter is that Manikai who was a Second Respondent in the matter in which he is personally implicated, was served with the application and must have informed his co-Respondent, President Mnangagwa, of the existence of the dispute in which they were jointly implicated as party to a conduct that is inimical to the rule of law, and a decision was made without the knowledge and involvement of the Attorney General to oppose the matter using Manikai’s law firm.

The constitutional implications of this decision to outsource legal services by the President notwithstanding the fact that he lacks the jurisdiction to be involved in the prosecution of his defence to a constitutional question that arises from his conduct as President of the country.

It is significant that s2(2) of the Constitution compels every person to subject the conduct of the President to scrutiny and this apex court was given the solve discretion to determine if the conduct of the President is consistent with the constitution.

Mupasiri launched an interlocutory application to challenge the authority of DMH to act as the President’s legal representative.

Instead of determining this question in a transparent and open manner, the Court chose to exempt the President from accounting to this court how he got to oppose an application he had no knowledge of and who appointed DMH to act for him.

To date, this version has not been furnished to the court despite the promise in the constitution that no one is above the law including the court to allow a dispute to be determined without all the parties to it being properly before the court and pleading under oath on their knowledge of the facts in it.

Mupasiri who is a self-actor in all these matters was surprised at the attitude of the court and how this material dispute was knowingly and intentionally ignored by the court yet found himself a victim of a costs order in a matter that ordinarily been not have attracted the court’s time.

During Patel JCC’s hearing, Mupasiri pointed out that it was striking that the court was informed by a representative of the AG that it was prosecuted without the involvement of the office vested with the requisite authority, yet no effort was made to treat his complaint by way of a formal application as prescribed by the constitution.

It was on this badis that a generally held perception of judicial capture was confirmed and as such in terms of the prescription of s2(2) of the constitution, he had a duty to raise his concern that his application was already pre-determined and more significantly that the fate of Mawere’s similar application was also predetermined given that the legality and constitutionality of DMH’s agency escaped the scrutiny of the court’s attention.

Against the above factual background, the court has made Mupasiri’s access to court in a matter in which he is exercising a duty imposed on all persons to uphold, defend, respect and obey the constitution as the supreme law and any conduct that is inconsistent with this constitution including the conduct of intentionally and knowingly outsourcing the legal agency to a conflicted firm, DMH, to be invalid and as such no justice would be served by DMH’s agency continuing.

It is the court’s complicity that is the issue and not contempt.

By silencing and intimidating Mupasiri, is Patel JCC singing for his supper after the recent extension of his post-retirement service.

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