JUROL AT WORK – IN PURSUIT OF THE RULE OF LAW – ONE CASE STUDY AT A TIME

———- Forwarded message ———
From: Mutumwa Mawere <[email protected]>
Date: Thu, Oct 13, 2022 at 8:43 AM
Subject: Re: MUPASIRI | KLEIN N.O. | K KEEVY N.O.| ENS|DLA PIPER | M MAWERE CASE NO: 2022/41435
To: George van Niekerk <[email protected]>
Cc: [email protected] <[email protected]>, [email protected] <[email protected]>, [email protected] <[email protected]>, Mr Neil van Onselen <[email protected]>, Kirsty Simpson <[email protected]>, George van Niekerk <[email protected]>

Good morning, Mr. Van Niekerk

My name is Mutumwa Mawere.

I am the Fifth Respondent in the matter under case number … in which Mr. Mupasiri us seeking to comply with his obligations as set out in Chapter 2 as follows;

“Supremacy of Constitution

2. This Constitution is the supreme law of the Republic; any law or conduct inconsistent with it is

invalid, and the obligations imposed by it must be fulfilled.”

Please find herewith a SoundCloud link containing your utterances in relation to the matters that are pending before the South African courts: https://soundcloud.com/the-1873-fm/mr-george-van-niekerk-executive-and-head-of-dispute-resolution-at-ens-in?si=60ac8b4c8e014688a22bb6f00dd5b5f3&utm_source=clipboard&utm_medium=text&utm_campaign=social_sharing.

I have never met you in my life, so I am not a subject of your interest.

The only matter in which I have personally been cited and obtained a judgment in favor of your firm is under case number 20235/06, per Willis J.’s judgment.

The issues inherent in this judgment go beyond the normal matters involving commercial disputes that arise in the Republic of South Africa.

The Plaintiff in the matter was an entity with the name SMM Holdings Private Limited (SMM), when in truth and fact this was an organ of the government of Zimbabwe pursuant to an extrajudicial order that was issued by the Minister of Justice of Zimbabwe in relation to the affairs of SMM.

The effect of this decree was to divest and deprive SMM’s shareholders of its control and management.

It is not in dispute that the right, power, and authority to litigate in the name of SMM were pursuant to this decree.

Mupasiri was not a party to the actions taken by the GOZ to permit his alleged links with me to be a factor or an issue of interest in relation to the Chapter and the obligations that are binding on all persons to ensure that the rule of law is protected and no one is above the law.

This Chapter directly speaks to the supremacy of the Constitution and the fact that any law (decree) and conduct, including your utterances, that are inconsistent with the Constitution are invalid to the extent of their inconsistencies.

I have read Mr.  Mupasiri’s founding papers and his cause of action, which fall outside the ambit of any self-vindication or any attempt to use these judicial proceedings to assert any personal rights that would justify the attack on my person and dignity as enshrined in Chapter 1, Section 2 of the constitution.

After accepting that your firm was involved in prosecuting the matters on behalf of SMM under the control of the GOZ and not the company, all the judgments granted in favor of this organ of a foreign government would, on the face of them, appear to have been granted to a juristic entity called SMM.

However, your firm would have been aware of the legal and constitutional consequences of disguising the true identity of the party before the Court.

Was it a company, as per the papers presented to courts in judicial proceedings?

If it were, a universal principle exists that a company’s authority is vested in its directors, who, in terms of the Companies Act, an act of general application, owe a fiduciary duty to the company.

Your firm’s client, SMM under reconstruction, was represented in judicial proceedings in South Africa based on the locus standi derived from an act of a foreign state.

The Administrator’s relationship with SMM under reconstruction was administrative in nature, and by virtue of the operation of a decree that is inconsistent with the constitution of South Africa, he made your firm’s power of attorney invalid as prescribed by the supremacy of the constitution chapter, which is a fundamental tenet of the rule of law.

It is chilling that an Executive Director of ENS Inc. would openly and maliciously seek to defeat the ends of justice by asking a member of the media to publish an article to the effect that Mupasiri’s alleged association with me based on the same address in South Africa is tantamount to conduct that falls outside the prescriptions of a Section 2 remedy.

I am a Respondent in this specific matter that is subjudice, and notwithstanding the provisions of s. 34 of the constitution that provide for equal access for every person (including Mupasiri) to use the courts to determine any dispute that may exist between the Respondent and him.

No limitation is prescribed as to which person and address he should use, especially having regard to the fact that the address used is a shared and commercial one for any association between natural persons to be used to infer the motive behind a matter that only an independent and impartial tribunal should determine.

Having listened to the audio more than once, the inescapable conclusion is that your firm, although no relief is sought against it, has chosen to use my name as a weapon to oppose this matter.

I would, therefore, seek your indulgence to indicate any relief sought by Mupasiri that seeks to review, vary, or appeal a judgment in which he was not a litigant.

To the extent that the decision to act on behalf of the GOZ disguised as a juristic entity and your firm’s agency was causally linked to a right or authority derived knowingly and intentionally from a foreign law that is inconsistent with the supremacy prescription entrenched in the Constitution, any recognition and enforcement of such a law constitute conduct that falls within the ambit of the Chapter’s jurisdiction.

You have asserted without identifying in what capacity a collateral challenge to judgments that are tainted by fraud constitutes an attack on the judiciary.

This would be a correct position if the constitution exempted the bench and its members from the obligation to obey, respect, defend, and uphold the rule of law and to conduct themselves as prescribed in s. 33(1) of the constitution.

I am troubled by the fact that, as a practicing lawyer who took an oath to ensure that the rule of law is protected and that justice is not only served but is seen to be served, you would conduct yourself in a manner that puts the entire justice system into disrepute.

It would be a dereliction of obligation imposed upon me as a citizen to keep this discovery of your utterances, whose effect is not only to undermine the rule of law but continue to use the judicial system to sustain a precedent that will haunt SA and Africa in the project to build an inclusive, open, transparent, and accountable governance system based on equality before the law.

To the extent that you personally believe that you have a right to judge the bona fides of a dominus litis like Mupasiri on what cause of action he should assert to an independent court, that his freedom of association and choice of the address of service should be relevant matters for the court to be concerned about, and that in a Section 2 remedy, the locus should be denied, it is critically important that you confirm that the voice in the audio is yours.

This will permit me as an affected party to decide on what course of action I should take as a person implicated in your vicious attack on the rule of law, against your firm, and finally to the nation and beyond to expose that South Africa is open to entertaining, recognizing, enforcing rights derived from using public power to divest and deprive of the rights that are entrenched in the constitution and using the justice system as a weapon to destroy the moral, legal, and constitutional fabric created in the post-apartheid era.

In conclusion, your conduct is fodder for rogue regimes in Africa, who, after listening to your audio, would find no reason not to emulate the precedent set and enforced in South Africa without any regard to the limitations imposed by the constitution in giving jurisdiction to decrees and conduct that is inconsistent with the constitution.

I trust that you will do the above in order, and should you fail to confirm that the voice is yours by no later than 2 p.m. today, my rights will be strictly observed.

Regards,

On Monday, October 10, 2022, at 3:04 PM George van Niekerk <[email protected]> wrote:

Dear all,

We enclose herewith the following:

• Third Respondent’s Notice of Intention to Oppose; and
• Notice in terms of Rule 47(1).

Kind regards

George van Niekerk Executive Dispute Resolution +27 21 410 2500 +27 82 414 4298 [email protected] ENSafrica locations UNsubscribe | Privacy Policy