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Mr. George Van Niekerk asserts that judgments tainted by fraud cannot be collaterally impeached – as he warns Mupasiri not to criticize ENS INC., for acting for the government of Zimbabwe

Caroline Du Plessis

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In an audio with a journalist, Mr. George Van Niekerk, Executive with ENS INC., warns Mupasiri not to criticize SA judgments and also not to attack his firm for acting on behalf of the government of Zimbabwe, as he asserted boldly that any attempt to attack judgments tainted by fraud will not succeed in South Africa.

ENS INC has opposed an application launched by Mr. Mupasiri under case number 2020/41435 although no specific relief is sought against the firm.

The notice of opposition was signed by Mr. Van Niekerk on behalf of ENS INC., as shown below:

Mr. Mupasiri concerned that SA courts were intentionally and knowingly misled by a team led by Mr. Manikai into determining and granting judgments in favour of a creature disguised as a juristic entity when in truth and fact the effect of the an extrajudicial decree issued by the then Minister of Justice, Hon. Chinamasa, was to divest and deprive SMM of all the properties of a company including its control and management that was vested in the Administrator appointed extrajudicially.

The question that Mupasiri has paused to the SA court is whether SA courts have title and jurisdiction to give audience to a creature of statute whose authority to litigate in South Africa is derived from a law and conduct that is inconsistent with not only the constitution of South Africa but international law.

ENS INC., represented by Mr. Van Kiekerk asserts that once a judgment has been granted even though facts may exists that it is tainted by fraud in that orders were sought and granted on the basis that SMM was a private company when the facts inherent in this matter show that the shareholder of SMM, an English company, SMM Holdings Limited (SMMH), was stripped of its shareholding without any due process.

It was argued by the government of Zimbabwe that SMM was indebted to the state and was insolvent, and in the circumstances, Mr. Mupasiri has cited ENS INC., to assist the court to determine how an insolvent company could engage the services of this expensive law firm.

The judgments in question were clearly in favour of SMM Holdings Private Limited when no facts were placed before the court that this entity was hijacked using public power in Zimbabwe leading to the export of the right and authority conferred by a Zimbabwean decree for an Administrator who owes no duty to this organ of state but to the Appointing Authority i.e. the Minister of Justice.

The question that Mr. Van Niekerk has refused and failed to answer is whether the firm’s client was a company or an organ of the government of Zimbabwe.

President Mnangagwa has already answered this question by admitting that he was fully informed of all the affairs of SMM and confirmed his involvement.

There is no dispute that President Mnangagwa since 1980, has always been a public office bearer and as such the only nexus that he could legitimately claim in relation to the affairs of SMM under reconstruction was pursuant to the existence and operation of an extrajudicial order that permitted the Minister of Justice to substitute the right, power, authority and legal relationship that existed in terms of the Companies Act, a law of general application, between SMM, the company, and its shareholders and directors.

Below is an extract of a chat that was triggered by an audio in which Mr. Van Kiekerk is coaching a journalist on what to write on this story.

[6:05 am, 13/10/2022] Munaku: My day was a little packed but here I am. The ramification of this extraordinary import goes beyond the mere walls of the court and individuals concerned into a reversal of the gains from the South African freedom fight. Words construct our reality. If the South African government makes use of agreed draconian laws from another country what stops it from importing many others to settle matters of other South African entities and persons using these newly discovered weapons of choice. This will set an undesirable precedence. The road to hell is often paved with good intentions and clearly we should not be making use these paving bricks. They end in the creation of another draconian state that will repel business and have its people running out of it like we see in Zimbabwe.

[6:07 am, 13/10/2022] POL00012: Good morning

[6:07 am, 13/10/2022] POL00012: Thanks

[6:21 am, 13/10/2022] Munaku: Morning.

[6:37 am, 13/10/2022] POL00012: Do you think the draft letter should be sent?

[6:38 am, 13/10/2022] Munaku: It’s a war. Yes, it is the kitchen sink.

[6:39 am, 13/10/2022] Munaku: By the end of today till tomorrow i will be in a poor network area.

[6:40 am, 13/10/2022] POL00012: No problem. Your voice has already registered. War demands actors in it.

[6:42 am, 13/10/2022] Munaku: Thank you. In a war you throw everything including the kitchen sink. All is fair.

[6:45 am, 13/10/2022] POL00012: Indeed. Is it a war against me or against the supremacy of the constyin your perspective?

[6:52 am, 13/10/2022] Munaku: It’s a war against perceived enemies of members of some of the political elite in Zimbabwe. South Africa is catching the infection from Zimbabwe.

[7:43 am, 13/10/2022] Munaku: Call it a persecution. An assault on the constitution of South Africa.

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