Justice Makarau under the spotlight

The Mupasiri application that is pending before the Constitutional Court took a new twist yesterday when Justice Makarau with Justice Makarau came under the spotlight for her decision to determine a complaint by SMM Holdings Limited (SMMH), a company registered in the UK, the sole shareholder of SMM Holdings Private Limited (SMM), a company whose control and management was divested from SMMH and its directors by an act of state, without looking at the merits of the matter

Justice Makarau confirmed her decision to adjudicate the dispute on technicalities than on the merits of the case.

This specific dispute arose following the dramatic statement of President Mnangagwa on paragraph C10 of his answering affidavit to 6 Intervening Parties who have applied under Rule 51(3) of the CCZ Rules of Court for leave of court to intervene in the s167 attack of the Constitution on the premise that the President has breached his oath of office as such he conduct in refusing and failing to disclose his knowledge and involvement in the birth and prosecution of the Reconstruction of the State-Insolvent Companies Act (Reconstrion Act) in relation to the affairs of SMM; as follows:

“It is denied that the application for recusal is solely premised on the fact that Makarau JCC presided over the matter under Case Number HC12064/05.”

In relation to the Mupasiri challenge, President Mnangagwa has relied on Justice Makarau’s judgment in the above-mentioned matter in which she was asked to review the decision by Kamocha J (as he was known then) to confirm an extrajudicial order that was issued by Chinamasa in relation to SMM based on regulations introduced without parliamentary involvement and no role of the judiciary in its issuance and implementation.

President Mnangagwa who has already stated under oath that contrary to s(2)(1) of the Constitution that provides for the supremacy of the Constitution and that any law including the Reconstruction Act that is inconsistent with this supreme law, is invalid ab initio to the extent of any inconsistency, he has boldly asserted that he is bound by extant laws and his duty is to uphold judgments of the Court, not the constitution.

A dispute ensued in relation to the President’s averments that Justice Makarau had disposed of the dispute at the material time on merits when in truth and fact the Learned Judge had stated in her judgment as follows:

“ view of the decision I have reached above on the preliminary issues raised in this application, I consider it unnecessary that I proceed to determine the matter on merits.“

Mawere in his replying affidavit to President Mnangagwa’s misrepresentation of the basis on which Justice Makarau had made a finding in the matter stated:

“It is not clear from what source President Mnangagwa relies on to intentionally and knowingly mislead this Court that the application was dismissed for lack of merit when clearly an independent and impartial judge, would have adjudicated the matter in the interests of justice and based on evidence.

The basis of her recusal is that as a judicial officer she had no right or title to dismiss an application in which rights were involved without dealing with the merits of the matter.

tIt is wrong for the First Respondent to import facts that do not exist in relation to the conduct of Makarau JCC in the matter where justice was clearly a victim.”

Mupasiri asked Justice Makarau whether a judicial officer possessed the title to make a judicial decision without having regard to the law as it applied to the particular evidence and facts presented in the case.

Justice Makarau’s emotional response was asking whether he had taken any further steps to appeal, review or rescind the impugned judgment or not.

Mupasiri, the Applicant, said: “I was taken aback by Justice Makarau’s reaction. She was evidently angry that I had the audacity to assert that untenable position that it is permissible for an independent and impartial judge to dismiss a matter on procedural grounds. It was a chilling experience for me as a self-actor to hear Justice Makarau defending the indefensible by deliberately challenging me for not appealing her judgment when she knows that the remedy of appealing a judgment is only available to litigants. She knew that I was not a litigant in the matter and I was simply responding to her direct question on what was the connection between the basis of her decision and the recusal application to which I had responded saying that my apprehension of her basis was premised on her decision to use technicalities to grant a fraudulent judgment based on facts that were not before her. I left the Court with a feeling that Justice Makarau had already predetermined the case and based on her attitude displayed in court my apprehension of her bias and determination to defend her judgments will be a real factor in her decision regarding the recusal application.”

Mawere said: “The test for any independent and impartial’s bias has to deal with the judicial officer’s attitude to the rule of law.

A judicial officer had no discretion but to base his or her decisions on the merits of a matter rather than on procedural grounds.

This is important because a decision on the merits is considered final and is thus bound by res judicata a defence that President Mnangagwa has already used in relation to Mupasiri’s court challenge.

If a decision is bound by res judicata, the parties involved in the case may not later raise those same claims in a subsequent case.

Instead, a party that disagrees with the decision must appeal the decision, file a motion for a new trial, or file a motion to reconsider.

It is disturbing that President Mnangagwa would intentionally and knowingly assert that Justice Makarau’s decision in relation to the SMM dispute was based on merits when this was false simply to advance a falsehood that the dismissal of SMMH’s legitimate cause of action was merit-based and as much he is bound by it.

In any constitutional order, Justice Makarau would know that she acted improperly and against her oath but regrettably because his favorite law firm, DMH Attorneys, who prosecuted the matter and is his legal advisor is involved, President Mnangagwa has relied on the res judicata I’m opposing Mupasiri’s challenge when Manikai as an officer of the court knows and ought to know that decisions that do not rest on the merits, however, are not bound by res judicata because the claims were not properly heard.

Thus, the claim by Mupasiri that there should be no basis for asserting the res judicata in his application does not suffer the barrier of needing him to explain to the court regarding his strategy to bring forth the SMM matters as he did.’