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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



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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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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