Mr. Mupasiri breaks the mold in South Africa – Challenges the extraterritorial application of a Zimbabwean decree

Mr. Mupasiri, a layman, was frustrated when every senior lawyer he approached in both South Africa and Zimbabwe, refused to be engaged in resolving a number of constitutional questions that arose from the issuance of an extra-judicial order in relation to the affairs of SMM Holdings Private Limited (SMM) on 6 September 2004 whose effect was to divest and deprive SMM’s UK-registered parent, SMM Holdings Limited (SMMH) of the control and management of their Zimbabwean subsidiaries without following any due process of the law.

When Mupasiri joined the Friends of SMM (FOSMM) in June 2021, he had no idea of the reality v fiction in relation to what Manikai had stated in his chat of 27 March 2021 with Mr. Frederick Mutanda, that the origins of the SMM debacle was a political fallout between the ultimate shareholder of SMM, Mr. Mawere, and the current President of Zimbabwe, H.E. Mnangagwa, he had no idea what was in store for him but the constitutional implications of the contents of screenshot below had a chilling effect on him:

Mupasiri was shocked to learn that conduct that permits a Minister to issue a binding and enforceable order would be allowed to confirm his order by a court of law especially having regard to the separation of powers doctrine, a fundamental tenet of the rule of law.

In addition, he had expected Chinamasa in his capacity to be represented by the Attorney General in relation to this matter, only to find the chilling reality that the same Manikai who openly admitted to be part of the Mawere & Mnangagwa feud, would be the driving force behind this frontal attack on the independence and impartiality of the judiciary, as Chinamasa’s legal counsel:

Mupasiri was shocked to read that shareholders and creditors of SMM were notified of the hijack of their company by way of a notice in the government gazette.

He was also disturbed that Chinamasa had the audacity under Mugabe’s watch to openly inform the Court that Patel JCC, who was the Acting AG at the time, was party to a process in which his office’s agency was thwarted by DMH as the Minister’s legal practitioners.

In a landmark application under Case Number 34/21, Patel JCC saw no evil and heard no evil in him being part of the Constitutional Court of Zimbabwe’s (CCZ) panel to determine if the conduct of a private law firm substituting the AG’s role in prosecuting civil and constitutional matters.

In this matter, no records exists showing when and how DMH was hired and it would appear that no procurement processes and procedures were used in the hiring of this firm, whose role in the ascendancy of President Mnangagwa raises serious and fundamental legal and constitutional questions.

Set out below is what Chinamasa under oath told the court regarding the manner in which the control of SMM was divested in broad daylight:

In the matter under Case Number 34/21, Mupasiri believing that the constitution was binding on both Mnangagwa and Manikai sought to compel the President to give account of his state of knowledge and involvement in the damning allegations made by Manikai that it was a political fallout in relation to ZANU-PF affairs that seamlessly was exported to the government of Zimbabwe in which state of emergency powers were used to justify the issuance of the order without the involvement of parliament, he was shocked to discover that the apex court would come to the aid of President Mnangagwa to allow him to intentionally and knowingly refuse to bring the court into his confidence on this matter.

Notwithstanding, Mupasiri was also shocked to learn that the controversial decree was recognized and enforced in South Africa hence the applications to ascertain the title and jurisdiction of the SA to give audience to an organ of state of Zimbabwe in judicial proceedings using the authority granted in terms of Zimbabwean law as the bridge to asserting any rights derived from the use of public power.

He was shocked to learn that a prestigious law firm like ENS Inc., was the legal firm acting on behalf of this legal monster called SMM under the control of a government appointed administrator.

It is important to underscore that a company under the control of a court appointed authority, is provided for in terms of the Companies Act, a law of general application, whereas a creature whose control is vested in a government appointed person, can only exist in terms of another law in which the principles entrenched in the constitution have to be excluded.

It is trite an Administrator of an organ of state owes a duty of care to the Appointing Authority but a liquidator’s conduct is controlled by the court through the Master of the High Court.

When Mupasiri discovered that although his application falls within the ambit of his constitutional duties as prescribed in terms of s2 of the Constitution, and no dispute of fact existed as to the causal link between the reconstruction and extra-judicial and constitutional considerations, he sought the court’s intervention simply to determine whether a representative of a foreign organ of state can be given audience in South Africa under the guise that it was a normal juristic entity seeking the protection of the SA court to assert rights against SA citizens and entities.

He also sought to establish whether the effect of a foreign draconian order can be recognized and enforced in South Africa without undermining the SA constitution, SADC Treaty and Protocol, and international law.

Mupasiri has indeed broken the mold by stepping forward to expose the alleged complicity of the SA justice delivery system in aiding and abetting the conduct of craftily using public power to expropriate private property without compensation.