[18/11, 19:22] Prof. Mupasiri Zimbabwe: ———- Forwarded message ———
From: Tichaona Mupasiri email@example.com
Date: Fri, 18 Nov 2022, 13:21
Subject: RE: MAWERE & ANOTHER V PRESIDENT RAMAPHOSA & 16 Others – Case Number 2022/045016
18 November 2022
Dear President Ramaphosa,
RE: MAWERE & ANOTHER V PRESIDENT RAMAPHOSA & 16 Others – Case Number 2022/045016
Please find my letter below in relation to the above matter.
INTRODUCTION AND BACKGROUND
1.My name is Tichaona Mupasiri, a Zimbabwean by heritage. I am a member of the Africa Heritage Society (AHS), a not-for-profit organization (NPO), registered in terms of the laws of South Africa, whose members share a common interest in defining and shaping the character and personality of Africa as a home that celebrates the supremacy of the constitution as the sine qua non for delivering inclusive and borderless open, transparent and accountable governance system.
2.I am the 14th Respondent in the matter under Case Number 2022/045016 that was launched by Mr. Mutumwa Mawere and SMM Holdings Limited (SMMH), as the 1st and 2nd Applicants, and you are cited as the 1st Respondent.
3.Having read the application and the allegations therein, I felt compelled to address this letter to you directly and copy to the rest of the parties cited therein so that a holistic approach to the serious issues inherent in the matter can find a proper audience to address them.
4.Out of respect for the office you hold, I was tempted to respond to the application as a purely constitutional question but the facts that are known to me have provoked me to request an urgent meeting with you to allow me to provide you with facts that may put this matter in a proper context.
5.You will be aware from the afore-mentioned application that the following facts are not in dispute:
a.That the rights derived from an extra-judicial decree promulgated by the late President Mugabe in September 2004 and an order issued by the then Minister of Justice, Legal and Parliamentary Affairs, Hon. Chinamasa, in relation to a private company, SMM Holdings Private Limited (SMM), whose effect was to divest and deprive the shareholder, SMMH, and directors of the company, SMM, that were appointed by SMMH, of the control and management of the company, was recognized and enforced in South Africa as evidenced by a plethora of judgments sought and granted in South Africa in favour of SMM (under the control of an Administrator appointed in terms of the Zimbabwean decree.
b.That through the agency of the 9th and 10th Respondents, the Administrator’s right, capacity, authority and legal relationship with SMM (under reconstruction) were recognized by the SA courts contrary to the prescriptions of international law, SADC Treaty and Protocol, and more importantly SA constitution and common law that the locus to act as a representative of a foreign company whose control and management has been divested pursuant to judicial proceedings, albeit that SMM’s control and management was not divested pursuant to judicial proceedings, is determined via application by the High Court of South Africa.
c.Notwithstanding, the limitations imposed by s2 of the SA Constitution, the reality is that the appointment of the Administrator in terms of this repugnant decree was recognized and enforced in SA.
d.As a member of the Justice Under Rule of Law (JUROL) and an activist, I am pleased to inform you that as part of our strategy to play an active part in the project to build an open, transparent and accountable governance system in Africa starting with the SADC region, I was the applicant in the matter under Case Number CCZ 34/21 in which I sought to hold President Mnangagwa to account for his state of knowledge and involvement in the facts and circumstances leading to the extra-judicial divestment of the control and management of SMM and consequently to the series of litigations in South Africa that form the subject matter of Mr. Mawere’s application.
e.You will be pleased to take notice that President Mnangagwa did confirm knowledge and involvement in the affairs of SMM under reconstruction.
f.This confirmation under oath was instructive in that it put to rest any doubts that I had that the legal status of SMM after the issuance of the reconstruction order on 6 September 2004 could that be of a juristic entity as ordinarily understood universally.
g.I could find no authority that could permit a public office bearer of a foreign government to possess any authority or right to know the affairs of a company outside the prescripts of a Company Act, as a law of general application.
h.He confirmed that his view that he duty as a President is to the Reconstruction Act and not the constitution.
i.I was concerned that he holds the view that is fortified by the SA judgments that a law that divests of rights is constitutionally valid although recently the Supreme Court of Zimbabwe ruled that a similar Ministerial order issued in relation to Hwange Colliery Company Limited (Hwange), a company whose shares are listed on the Zimbabwe Stock Exchange, JSE and London Stock Exchange, was a nullity and was, therefore, invalid.
j.Since November 2021, I have rigorously sought to test the veracity of the serious allegations made by Mr. Edwin Manikai, a key role player in the post-reconstruction of SMM affairs, that the genesis of the decision to divest Mawere of the control and management of all his companies in Zimbabwe, Zambia, South Africa and the United Kingdom was an alleged political fallout between Mr. Mawere and President Mnangagwa who at the material time was a de facto President of Zimbabwe.
k.I was not surprised, therefore, that President Mnangagwa, contrary to the provisions of the Constitution, chose Manikai’s firm to represent him on all matters related to SMM and indirectly to Mawere.
l.It is also not in dispute that SMM under reconstruction is represented by DMH Attorneys, the firm that Manikai is one of the founders and is the point person on all SMM matters.
m.The 9th and 10th Respondents are instructed and briefed by Manikai through DMH Attorneys.
6.You will be pleased to take notice of the fact that although the key reason that public power was used to divest SMMH of the control and management of SMM was that SMM was indebted to the government of Zimbabwe (GOZ) and it was insolvent, this same firm was able to benefit from the commercial legal services provided by DMH and in turn by the 9th and 10th Respondent.
FOSMM V PRESIDENT RAMAPHOSA & ANOTHER
7.I have read with keen interest the above-mentioned application and your opposition to it.
8.I am pleased that I was cited as a Respondent in the application launched by Mr. Mawere because this assists in exposing the true nature of the corruption and fraud inherent in the prosecution of the matters in SA on behalf of the captured company, SMM, whose control and management is vested in a foreign state.
9.If anyone had any doubt that SMM under reconstruction is an organ of the GOZ and as such its legal status is that of a government agency and not a company as intentionally and fraudulently misrepresented in judicial proceedings in South Africa.
10.I am the Applicant in the matter under Case Number 22/23268 in which I cited SMM Holdings Private Limited as the 1st Respondent with the following Respondents as 2nd to 5th Respondents:
a.Master of the High Court of South Africa.
b.Edward Nathan Sonnenberg Inc.
c.Theodor Wilhelm Van Den Heever in his capacity as a liquidator involved in the matters.
d.Pieter Colyn in his capacity as the attorney who was first briefed by DMH in relation to the SMM matters.
11.I issued a Rule 7(1) Notice challenging the authority of an Administrator appointed pursuant to the existence and operation of the Reconstruction Act of Zimbabwe and not the Companies Act to represent SMM as a private company in judicial proceedings in SA without seeking the leave of the SA courts.
12.This was prompted by the Notice of Intention to oppose my application that was processed by DLA Piper (RF) South Africa Inc., as the new firm representing SMM under reconstruction disguised as SMM, a private company.
13.My notice was issued on 23rd August, 2022. It will please you to take notice that notwithstanding my challenge of the SMM under reconstruction to purport in litigation to be an ordinary private company, the persistence of Ms. Kirsty Simpson using prestigious law firms to assert that SA is not a sovereign country in which a foreign law requires recognition before any right it confers can be recognized and enforced, suggests a broken justice delivery system that cannot remain unchallenged and hidden under the carpet.
14.It is significant that this travesty of justice is occurring under your watch.
15.I attach herewith a Notice of Set Down for a hearing of an interlocutory application issued on behalf of a creature under the name SMM HOLDINGS (PRIVATE) LIMITED when it is common cause that this creature ceased to be a juristic entity when a draconian reconstruction order was issued in relation to its affairs.
16.One would have expected that no SA lawyer or actor would conduct himself or herself in a manner that is inconsistent with the limitations imposed by s2 of the Constitution by openly and overtly misrepresenting the true identity of its purported client as is evident in this matter.
17.Notwithstanding, this matter has been enrolled for hearing on 24 November 2022 notwithstanding the fact that SMM under reconstruction, the 9th Respondent and yourself are Respondents in the matter launched by Mawere in which the core dispute relates to the legal status of SMM under reconstruction since 2004.
YOUR OATH OF OFFICE
18.It is not in dispute that on 25 May 2019, Your Excellency swore as follows:
“I, Matamela Cyril Ramaphosa, swear that I will be faithful to the Republic of South Africa, and will obey, observe, uphold, and maintain the Constitution and all law of the Republic.”
19.Pursuant to this oath, I am sure you will agree that you have a duty to preserve, protect and defend the constitution as the supreme law of South Africa.
20.It is not in dispute that the obligations to obey, respect, defend and uphold the constitution as the supreme law are binding on every person including me to ensure that that such obligations are fulfilled.
21.In this case, no dispute exists that Zimbabwean public power was used to create the facts and circumstances including the alienation of the shareholders and the directors they appointed in relation to SMM from the company.
22.The successor entity SMM under reconstruction was created by force of a law that is repugnant to the laws of South Africa.
23.The involvement of the foreign state and its agents in exporting the application of this law to SA and the rights entrenched therein is not disputed by the President of Zimbabwe.
24.Accordingly, the alter ego of SMM under reconstruction is the GOZ.
25.The Administrator appointed extra-judicially owes no fiduciary duty to SMM as a company but owes a duty of care to his Appointing Authority i.e. the Minister of Justice of Zimbabwe.
26.He has no authority to act or represent a juristic entity.
27.The constitutional question that arises is whether an Administrator appointed outside conduct that is consistent with SA has locus to authorize SMM under reconstruction to litigate in South Africa.
28.It is self-evident that audacity of the GOZ to use SMM disguised as a private company in SA litigations even after the cloud that has been cast above SMM on the pretext that an Administrative occupies a position akin to a judicial manager or business rescue practitioner has been lifted, you owe a duty to step up to the plate and protect the SA constitution from being attacked by a foreign government.
29.The obligation imposed on your Excellency is no different to the one imposed on all citizens to ensure that the rule of law in SA is protected and hold accountable every person and especially oath taking public office bearers to be accountable to their oaths or vows.
30.In this matter, the following are common cause facts:
a.The reality that rights acquired under a decree promulgated in Zimbabwe were recognized in South Africa was brought to the attention of Your Excellency pursuant to the application launched before the High Court of South Africa under Case Number 2021/38369.
b.It was self-evident that the extrajudicial appointment of Mr. Gwaradzimba, by a Zimbabwean Minister of Justice, to assume the control and management of SMM Holdings Private Limited (SMM), constituted conduct that was inconsistent with the Constitution of South Africa.
c.It was and remains self-evident that the right to represent or purport to act on behalf of SMM under the control of this unrecognizable legal creature in terms of SA laws, was acquired under a law that is repugnant to the Constitution of South Africa.
d.That no right which was not been duly acquired is capable of being enforced or in general, recognized by SA Courts.
e.No nation possesses including Zimbabwe a right to require the full recognition and execution of its own LAWS IN THE TERRITORY of South Africa as is evident in this matter now known to you.
f.Your Excellency was fixed with the knowledge and remain fixed with this knowledge that the purported right acquired by Gwaradzimba to represent SMM under his control in judicial proceedings in SA was acquired under circumstances that are not recognizable in SA and any right that was acquired or existed in virtue of SA rule of conflict of laws could be capable of being recognized and enforced as was the case in relation to the appointment of Gwaradzimba and his purported legal relationship with SMM under his control.
g.Against the backdrop of your pleaded position in relation to the above-mentioned matter, it is incumbent upon me to seek the following clarifications that will inform my decision to proceed with the prosecution of the reality that your conduct in dealing with this matter is inconsistent with the constitution and as such it must be tested prior to your candidature as the President of the 2nd Respondent in my application:
- Whether SA courts should enforce a rights otherwise duly acquired under the law of a foreign country:
A:Where the enforcement of such a right is inconsistent with the sovereignty of SA and the limitations of extra-territorial application of foreign laws;
B:Where the enforcement of such a right is inconsistent with the policy of SAS;
C:Where the enforcement of such a right interferes with the authority of a foreign sovereign within the country whereof he is sovereign.
31.By you refusing and failing to hold the Zimbabwean government accountable for the overt and intentional export of a law that is inconsistent with SA public policy, SADC Treaty and Protocol, and international you, this constitutes conduct that falls within the ambit of s89 of the Constitution to warrant the National Assembly to intervene.
32.As a citizen of SADC, I feel betrayed by your administration’s foreign policy that seeks to target sanctions as the problem standing in the way of Zimbabwean’s restoration when your administration is complicit in aiding and abetting the GOZ in undermining the territorial integrity and sovereignty of your country and as a direct consequence, diminishing public confidence and integrity of your administration in dealing with the Zimbabwean crisis.
33.I believe the mere fact that the rights acquired from a foreign draconian law were recognized and enforced in SA and this information was brought to your attention and you then chose to refuse and fail to protect citizens of SA goes a long way towards entrenching the view your administration is intentionally blind to the rule of law abuses in Zimbabwe.
34.Your conduct in relation to this matter has demonstrated that you and your administration are not committed to using SA’s diplomatic power to help improve the rule of law climate in Zimbabwe.
35.Ordinarily, your oath must and ought to reflect a unique personal duty to shield the Constitution from external and internal threats to its integrity and sustainability, however, your conduct suggests otherwise.
36.It cannot be disputed that your duty should extend beyond preserving the Constitution itself to preserving the constitutional governmental order that it creates, the liberties it protects, and the nation and people it serves.
37.In this matter, the Court is entrusted with the authority to determine whether the President’s conduct involves abuse or violation of the public trust.
The SA prejudice suffered
PETTER TRADING PTY LIMITED / SCHWEPPES ZIMBABWE LIMITED
38.You will be pleased to take notice that the late Mr. Harry Kaplan who was a joint liquidator of Petter Trading Pty Limited (Petter), a company that was liquidated in SA as a consequence of the recognition and enforcement of the Zimbabwean decree, wrote a letter to the Coca Cola Company on 30 March 2006 as stated as follows:
“This serves to advice you that I am a Joint Liquidator of the above mentioned company. I attach herewith copies of three contracts in respect of certain equipment purchased by above-mentioned company (Petter) in 2003 detailed below:
39.The total value of the equipment that Petter handled and purchased on behalf of Schweppes Zimbabwe Limited (SZL), a company that fell under the ARL whose control and management was divested as a consequence of the operation of the same decree that was used in SA to find jurisdiction to prosecute the purported rights acquired by the government of Zimbabwe (GZ), was R37 million at the time in 2006.
40.Applying an interests rate of 15.5% since then, this amount would amount to R356,438,225.61 in today’s terms.
41.Absent the recognition and enforcement of the Reconstruction Act, this amount would have been paid to Petter by SMM in the ordinary course of business.
42.As at 6 September 2004, according to the then Finance Director of SMM, Mr. Karidza, SMM owed Petter an amount of R28 million which the equivalent of R338,808,681.57.
43.The amount an SA company, Petter Trading, was prejudiced by the abuse of the SA jurisdiction by the GOZ is R716,067,864.39.
CFI HOLDINGS LIMITED
44.It is not in dispute that the consequence of the recognition and enforcement of the reconstruction law in SA resulted in the theft of shares based on an unlawful set-off of an amount of US$4,646,445 that was fraudulently misrepresented as Southern Asbestos Sales Pty Limited (SAS)(in liquidation) for shares in relation to the affairs of CFI Holdings Limited (CFI).
45.This amount when converted at the prevailing exchange rate translate to R356,438,225.61.
TOTAL PREJUDICE SUFFERED AS A CONSEQUENCE OF THE FRAUD ON SA COURTS
46.Your excellency will be aware that the SA businesses that were decimated as a consequence of the reconstruction order that was issued in relation to SMM were many as set out in the diagram set out in the Annexure marked TM1.
47.The businesses on the Zimbabwean side are also set out in Annexure TM1.
48.The effect of the Reconstruction Act in relation to SMM was to prohibit any creditor of SMM to seek the protection of the Zimbabwean courts without the leave of the Administrator. As a consequence, the following amounts remain uncollected from SMM under reconstruction:
In relation to Petter: R716,067,864.39
In relation to CFI: R356,438,225.61
49.It is worth highlighting that as a consequence of the recognition and enforcement of the Zimbabwean draconian law, about 330 SA jobs were permanently lost.
Pending Matters before the Zimbabwean and SA Courts
50.You will be aware that I am the Applicant in the matter under Case Number CCZ 27/22 that is pending before the Constitutional Court seeking to hold President Mnangagwa accountable for his involvement and state of knowledge in relation to the facts and circumstances regarding the use of public power to divest and deprive SMM Holdings Limited (SMMH), the 2nd Applicant in the matter under Case Number 2022/045016, of the control and management of SMM.
51.On 26 October 2022, Mr. Mawere sought and was granted a postponement of the matter to allow the validity of the authority of SMM under reconstruction to litigate in South Africa as a normal company based on the purported right acquired from the Zimbabwean reconstruction law to be tested in SA. This, therefore, gives Your Excellency a unique opportunity to use your diplomatic power to hold the GOZ accountable for invading the SA jurisdiction with devastating financial and employment consequences.
52.If the authority of Gwaradzimba is recognized and enforced to act on behalf of SMM under reconstruction disguised as a company, it is self-evident that your duty will compel you to step up to the plate and protect the constitution of SA.
53.Should the Court find your conduct to be inconsistent with the constitution, it must follow that the provisions of s89 of the Constitution will automatically kick in.
54.It would follow that your suitability and eligibility to contest the position of the President of the African National Congress (ANC) will be directly affected.
55.It is in this contest that I am writing this letter to seek your undertaking that you will do as prescribed by s2 of the Constitution to take all necessary steps to ensure that the blemish put on the integrity of the constitution and the judicial system by this precedent will be cured.
56.Should you fail or refuse to make this understanding, I intent to approach the Court interdict and restrain you from accepting nomination pending the resolution regarding your conduct as alleged in my application.
57.This urgency of this matter is self-evident.
58.Accordingly, should you fail or refuse to respond to this matter by no later than close of business on 23 November 2022, I will proceed to launch my interdict application in reference to the Mawere application that is pending before the High Court of South Africa.
59.I trust that you will find the above in order.
60.I look forward to your response at your earliest convenience.
[18/11, 19:28] Prof. Mupasiri Zimbabwe: Good evening.
This and other attachments are the annexures to the email I sent to President Ramsphosa’s official email.