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A new twist in the Judge Patel & Mupasiri contempt saga



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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President Cyril Ramaphosa

President Cyril Ramaphosa will tomorrow , Wednesday, 22 March 2023, deliver the keynote address at the first day of the three-day National Conference on the Constitution which is titled Reflections And The Road Ahead.

The event will take place at the Gallagher Convention Centre in Midrand, Gauteng, under the theme “Reflections on the Constitution: Rule of law, accountability, social and economic justice”.

The conference gives the nation an opportunity to reflect and engage in dialogue on the past 25 years of the Constitution, nation building, gender equality, youth economic empowerment, service delivery and social stability, with the objective of charting a way forward that builds on the gains of democracy.

As a platform for deliberating on continuous, robust debate on the purpose and effectiveness of the Constitution, the National Conference on the Constitution intends to broaden the discourse on the Constitution and encourage members of the public to participate in the conversation on constitutionalism and the state of democracy in the country.

Some of the focus areas in the programme include:

• Transforming and building an independent and resilient judiciary;
• Transforming and growing the economy as a constitutional imperative;
• Progress on land reform: restitution and distribution;
• Governance and electoral reform;
• Effectiveness of constitutional and independent statutory bodies in strengthening
constitutional democracy.

The conference will be attended by prominent figures of South African society including academics, members of legislatures, constitutional and independent statutory bodies, mayors, political parties, youth, students, business leaders, religious leaders, representatives of the legal fraternity, traditional leaders, media and others.

The conference will be held as follows:

Date : 22-24 March 2023
Time : 08h30
Venue: Gallagher Convention Centre, Midrand, Gauteng

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Here are the facts:

THE COCA COLA COMPANY (TCCC) acquired THE ENTIRE ISSUED SHARE CAPITAL OF CADBURY SCHWEPPES PLC resulting in the control and management of the global Schweppes businesses into TCCC value chains including Schweppes Zimbabwe Limited (SZL), a company incorporated in terms of the laws of Zimbabwe.

Mr. Brian Musekiwa, a Zimbabwean-born professional based in Texas, USA, said: “I had no idea of the SZL matter and its intersection with the SMM Holdings Private Limited (SMM) affair until I joined the Justice Under Rule of Law’s (JUROL) corporate heritage and legal literacy campaign powered by the Banking on Africa’s Future (BOAF) of which I am a paid up member. I have followed the SZL saga with keen interest not because of the Zimbabwe angle but because TCCC is a global corporate icon and just the idea that this company was party to an extortion and corrupt deal involving the payment of $2.7 million to Chinamasa, Mnangagwa’s key 2017 coup ally, is chilling leading any person like me to want to know if there exists any causal link between the complicity of TCCC’s alleged corrupt practices and conduct in relation to the affairs of the SZL localization and upgrade program concluded with Africa Resources Limited (ARL), a private company incorporated in terms of the laws of the BRITISH VIRGIN ISLANDS (BVI) and wholly owned by Mr. Mutumwa Mawere, a Zimbabwean born South African naturalized citizen, who Mnangagwa and Chinamasa using Messrs. Edwin Manikai and Afaras Gwaradzimba as surrogates, and the extrajudicial and the unconscionable theft of the control and management of SZL and other juristic entities using an unprecedented draconian and barbaric law called the Reconstruction of State-Indebted Insolvent Companies Act that was authored by Mnangagwa to bridge him to state power.”

Mr. Cornwell Mutetwa, a Zimbabwean businesan said: “I naively thought that the reconstruction project was solely premised on the affairs of SMM as a company and not on the person of Mawere and his alleged interests in companies like SZL.

I am pleased that Mr. Mucha Mugore, a member of BOAF-JUROL, inspired by findings in his MBA dissertation research on how public power was abused in expropriating Mawere’s relationships with not only SMM but many separate and distinct juristic entities, provoked in a whatsapp group that the record of this sad chapter in the corporate history of Zimbabwe must be corrected preferably in form of a memoir written by Mawere.

I was encouraged and remain so that I have flins myself being part of this noble project that has enabled me to interface with Mr. Mawere who has generously downloaded critical information that hitherto has not been in the public domain. I had no idea that Coca Cola Holdings Netherlands (CCHN) was directly and indirectly involved in the affairs of SZL until I read this:

Having understood that it was the Zimbabwe Competition and Tariffs Commission (TCTC) was weaponized to have jurisdiction beyond its mandate to regulate competition issues to become relevant in prescribing localization matters, I began to understand that under the late Mugabe’s watch the governance system was already broken.

My memory was then provoked to appreciate why the former Minister of Indigenization, Hon Kasukuwere, had a hand in the SZL matter and used his public office to cause ZCTC to require as a condition for approving that the control and management of SZL be divested and deprived from TCCC using public power.

It is against this background that the extortion inherent in the extract below from a meeting between SZL’s then SA-based legal counsel, an employee of Coca Cola South Africa Pty Limited, a private company incorporated in terms of the laws of SA, can properly be understood:

It was made clear to CCSA that unless a payment of $2.7 million was paid to the order of Fidelity Life Asset Management (FLAM) and SMM under Chinamasa’s control through his appointee, Gwaradzimba, the ARL purchased equipment imported from Europe and delivered to SZL as part of the upgrade project, would not be released to an SZL controlled by CCSA until a ransom amount of $2.7 million was paid to the order of Chinamasa.

On the advise of Gwaradzimba whose relationship with SMM was a consequence of a decree and an order issued by Chinamasa with no judicial involvement, CCSA according to Mr. Mokwena, in his capacity as the legal counsel of both SZL and CCSA, was advised by Gwaradzimba and accepted his advise to part with a bribery of $2.7 in million to cause Chinamasa to exercise public power to issue a notice removing SZL from the purported and unlawful and invalid control by Gwaradzimba using the order issued by Chinamasa in relation to SMM affairs only.

It is chilling that Chinamasa used public power to issue a notice dates 26 January 2006 and through his appointee was rewarded with a secret gift of $2.7 million to the prejudice of ARL and its sole shareholder, Mr. Mawere.”

Mr. Peter Makoni, an attorney and a member of BOAF-JUROL, said: “I have had the opportunity to read and understand the sequence of events leading to the confiscation of equipment acquired by ARL using the personal agency of Mr. Mawere as set out below:

It is clear from the fax above that neither FLAM nor SMM under reconstruction were involved in the SZL matter as promoters and sponsors to permit any lawful payment of a bribe of $2.7 million to Chinamasa using cronies like Gwaradzimba and Manikai.

Having concluded that Chinamasa was unjustly enriched to the tune of $2.7 million based on fraudulent representation that the $2.7 million that ARL, a company whose affairs fell outside the jurisdiction of Zimbabwe and, therefore Chinamasa and his surrogates, in exchange for a government gazette to divest and deprive ARL of the control and management of the upgrade equipment that was conveyed by Petter Trading Pty Limited as ARL’s agent, received pocket money to be used for ulterior motives in the amount of $2.7 million from CCSA.

It would please anyone interested in building a future of not only Zimbabwe but Africa that is characterized by the respect of the rule of law to take notice of the documents in the flipbook below:”

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