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Mawere vs. Ramaphosa: A Constitutional Clash Shaking South Africa’s Legal Foundations
In the corridors of power and the hallowed halls of justice in South Africa, a legal and constitutional storm is brewing.
At the core of the clash is the binary of Ramaphosa vs. His Oath of Office.
The protagonists? Mutumwa Mawere, a South African citizen of Zimbabwean descent, and Cyril Ramaphosa, the President of South Africa.
At the heart of their clash lies a constitutional matter that has far-reaching implications for the rule of law, judicial authority, and the accountability of public officials.
The genesis of this legal saga traces back to a law that was given birth to by President Mnangagwa who in an affidavit he deposed, in opposition to Mr. Tichaona Mupasiri, the Director of the JUSTICE UNDER RULE OF LAW (JUROL), a public interest group that through the JLI-AI AFRICA initiative was created to promote, provoke, ignite, and inspire the shaping and building an African personality and character that respects, upholds, defends, and upholds constitutional principles and values as a cornerstone a democracy, governance (statecraft), and accountability without any exception in Africa,
In this matter, it is not in dispute that President Mnangagwa stated under oath as follows:
“Ad paragraph 107-123
71 The views held by Gwaradzimba on the constitutionality of the Reconstruction Act are informed by extant judgments of the apex court. Those views are shared by my government and can only be revised if a pronouncement to the contrary is issued by this court.
72 The facts relating to SMM are known to me. There are contained in the court records. I am briefed on them. The fact that Mawere has lost his matters in court is also known to me. It is a matter of public record. Besides, I am fully briefed on it.”
Notwithstanding what Ms. R. Matambo asserted in an affidavit deposed to in support of an application to convict Mawere as happened to former President Zuma as part of the weaponization of the judiciary to attack perceived political enemies, as follows:
1. I am a major female practicing attorney and partner practicing under the name and style of “Dube Manikai Hwacha Attorneys” (DMH) at its principal place of business situated at DMH House, 4 Fleetwood, Road, Alexandra Park, Harare.
2. I depose to this answering affidavit on behalf of the Intervening Party, SMM Holdings (Private) Limited (SMM). SMM is a company under reconstruction pursuant to a reconstruction order and decree dated 6 September 2004 and promulgated under General Notice 45A of 2004, which is attached hereto as annexure “AAI”. This fact has been accepted on numerous occasions by the South African courts.
it is not in dispute that the Mnangagwa Law that is commonly referred to as the Reconstruction of State-Indebted Insolvent Companies Act, was given birth as set out in the then Minister of Justice, Legal and Parliamentary Affairs, Mr. Patrick Chinamasa in an affidavit in support of his application to the High Court to confirm instead of determining the validity and legality of the reconstruction order that is referred to in the excerpt taken from Ms. Matambo’s affidavit:
“Section A: Introductory Matters
1. I am the Minister of Justice, Legal & Parliamentary Affairs in the Government of the Republic of Zimbabwe.
2. I am, in my official capacity, the Applicant in this matter.
3. Save where I indicate otherwise or where the context indicates otherwise, the facts that I depose to are within my personal knowledge, and are, to the best of my information and belief, true and correct. Where I do not have personal knowledge relating to any facts contained in this Affidavit, I confirm that I have verified, by due and diligent inquiry, the accuracy of such facts and that I believe them to be true and correct.
Section B: Summary of Relief Sought
4. This Application is made in terms of Section 8 of the Reconstruction of State Indebted Insolvent Companies Act (Chapter 24:27) (“the Reconstruction Act”) for an Order confirming the Reconstruction Order (“the Reconstruction Order’) that I issued on September 2004 in relation to SMM Holdings (Private) Limited (“SMM” or “the Company”).
5. wish to deal with a preliminary procedural issue before turning to the substantive aspects of this Application.
5.1 Section 8 of the Reconstruction Act requires that the Minister of Justice, Legal & Parliamentary Affairs should, by application made within thirty (30) days after the issue of the reconstruction order, seek an order confirming the reconstruction order.
5.2 The Reconstruction Act came into force on 4th March 2005.
5.3 The Reconstruction Order that I issued in relation to SMM was issued in terms of the Presidential Powers (Temporary Measures) (Reconstruction of State-indebted Insolvent Companies) Regulations, 2004 (published in Statutory Instrument 1870f 2004) (“the Reconstruction Regulations”).
5.4 At the time that I issued the Reconstruction Order there was no provision in the Reconstruction Regulations which required me to seek confirmation of a reconstruction order by a Judge or Court.
5.5 The Reconstruction Regulations were amended by the Presidential Powers (Temporary Measures) (Reconstruction of State-indebted Insolvent Companies) (Amendment) Regulations, 2004 (No. 1) (published in Statutory Instrument 218 of 2004) (“the Reconstruction Amendment Regulations’).
5.6 The Reconstruction Amendment Regulations introduced, by the insertion of a section 7A, the requirement for the confirmation of a reconstruction order.
5.7 The new Section 7A of the Reconstruction Regulations provided that the Attorney General was “At any time before a scheme of reconstruction is approved (by the Minister)” to apply to a Judge in Chambers for the confirmation of the reconstruction order.
5.8 The amendment to the Reconstruction Regulations, accordingly, only required that the application for confirmation be made at any time before the approval of the Scheme of Reconstruction.
5.9 In view of the aforegoing, I would, therefore, submit, and I verily believe, that there is no time limit within which an application for the confirmation of the Reconstruction Order issued in relation to SMM is to be made as the provisions of Section 8 of the Reconstruction Act only came into effect after the Reconstruction Order relating to SMM had been issued.
Section C: Reconstruction Order
6. I set out below, the details of the Reconstruction Order that I issued in relation to SMM on September 2004.
6.1 I issued the Reconstruction Order in terms of Section 4 of the Reconstruction Regulations, after consultation with the Acting Minister of Finance and Economic Development.
6.2 The Reconstruction Order was issued in relation to SMM and, in terms of the Reconstruction Order, l:
(a) appointed Mr. Afaras Mtausi Gwaradzimba to be the Administrator of SMM, together with the following Assistant Administrators who were to be under the Administrator’s control and direction:
Mr. Forbes Mugumabati, whom I appointed to be the Assistant Administrator at Shabanie Mine; and
Mr. Robert Kaisi, whom I appointed to be the Assistant Administrator at Gaths Mines; and
(b) directed that, from the date of publication of the Reconstruction Order-
SMM was to be under the control and management of the Administrator; and
the board of directors of SMM was to be divested of the control and management of the Company’s affairs; and
any person managing or controlling the Company’s affairs in any capacity, other than as simply a member of the board referred to above, was to continue in office subject to the control and direction of, and be answerable to, the Administrator; and
(c) conferred upon the Administrator the power, subject to the rights of the creditors of the Company, to raise money in any way without the authority of the shareholders for the purpose of the Reconstruction of SMM.
7. At the time that I issued the Reconstruction Order in relation to SMM, it appeared to me that:
7.1 SMM was “State-indebted” in that it was, as at September 2004, indebted to the State, statutory corporations and State-controlled companies by reason of having received credit, in its favour, disbursed or payable out of public funds;
7.2 SMM was unlikely to be able to make any repayment of the credits or loans made to it from public funds on a date when the repayment of such funds was due.
7.3 SMM’s inability to repay arose by reason of fraud and mismanagement on the part of its controlling shareholder;
7.4 SMM was, through the actions of its controlling shareholder, being prevented from becoming a successful concern;
7.5 There was a reasonable probability that if the Company was placed under reconstruction, it would be enabled to pay its debts and meet its obligations and become a successful concern; and
7.6 It would be just and equitable that SMM be placed under reconstruction.
8. Due to the desperate nature of the circumstances of SMM at the time, I found that it was necessary to take immediate action to prevent irreparable harm to the Company, its creditors, members and employees and, in this regard, I proceeded to place the Company under reconstruction without affording the Company an opportunity to make representations in this regard.
9. The Reconstruction Order issued in relation to SMM was published in an Extraordinary Government Gazette issued on 6th September 2004, a copy of which is annexed hereto marked Annexure “PAC1”
10. I also proceeded to issue the Administrator of SMM, Mr. Gwaradzimba, with a certificate of his appointment as Administrator. A copy of this certificate is annexed hereto marked Annexure “PAC?.
Section D: Background information on the placing of SMM under reconstruction
1 1 . I believe that it is necessary, in order to be able to put this Application in its proper perspective, for me to furnish the Honourable Judge with certain background information on SMM.
12. SMM is a company duly incorporated in the Republic of Zimbabwe in terms of the Companies Act.
13. SMM carries on business:
as a miner of asbestos, under the name and style of African Associated Mines (“AA Mines” or “AAM’); and also
(b) as an investment holding company for a number of subsidiary companies and associates.
14. AA Mines is a division of SMM and operates two asbestos mines, namely, Shabanie and Gaths Mines (“the Mines”), which are situated in Zvishavane and Mashava, respectively.
15. The Mines that are operated by SMM through its division, AA Mines, constitute the entire operating asbestos mining and processing capacity of Zimbabwe. Approximately 95% of the asbestos that AA Mines produce is exported. At its peak, AA Mines contributed approximately 10% of Zimbabwe’s foreign exchange earnings.
16. The AA Mines division of SMM currently employs approximately 5,600 people, and the two towns of Zvishavane and Mashava are entirely dependent for their existence on the mining activities of AA Mines. More than 60,000 people in and around these two towns are directly and indirectly sustained by the activities of AA Mines.
17. The Mines, as operated by AA Mines, are therefore, significant national assets.
18. SMM is the holding company for a number of subsidiaries, three of which subsidiaries are listed on the Zimbabwe Stock Exchange (“the ZSE”), namely, General Beltings Limited, Turnall Holdings Limited and Steelnet (Zimbabwe) Limited.
19. SMM is also, in terms of the Law of Reconstruction, associated with TAP Building Products Limited (“TAP”), a company incorporated in Zambia.
20. The registered shareholder in SMM is SMM Holdings Limited (“SMMH”), a private company limited by shares and registered in England.
21. At all material times until 1996, SMMH had been owned by T&N Plc (“T & N’), a company registered in England and Wales.
22. On or about 7th March 1996, Zimbabwean born Mr. Mutumwa Dziva Mawere (“Mr. Mawere”), through his company, Africa Resources Limited (“ARL”), a company registered in the British Virgin Islands, concluded an agreement with T & N for the purchase of the entire issued share capital of SMMH, THZ Holdings Limited (“THZH”), a private company limited by shares and registered in England, and TAP through a Sale and Purchase Agreement (“the SPA”).
23. In terms of the SPA, the shares in SMMH and THZH (“the SMMH and THZH Shares’) were purchased by ARL for US$60 million payable over a period of twelve (12) months in monthly instalments of U$$5 million each, commencing April 1996 through a leveraged buy-out. The shares in TAP (“the TAP Shares”) were purchased as part of the same transaction for US$I . The purchase price for the SMMH and THZH Shares was to be financed from the operations of SMM. Similarly, and by virtue of the same indivisible transaction, the TAP Shares were to be financed from the same source.
24. Simultaneously with the signing of the SPA, the parties entered into a Memorandum of Deposit & Charge in terms of which ARL pledged the SMMH and THZH Shares to T & N as security, giving T & N certain rights as mortgagees in the event of ARL defaulting on any of its payments.
25. ARL defaulted on its payment obligations to T & N and T & N exercised its rights as mortgagee and, in November 2004, it became the member in SMMH and THZH.
26. Subsequently, in November 2004, T & N sold its rights and interests in the SMMH and THZH Shares to AMG Global Nominees (Private) Limited.”
An application was launched by a trust, Friends of Shabanie and Mashava Mines (Private) Limited, FOSMM), under Case Number 2021-38369 on August 12, 2021 and President Ramaphosa rather than comply with his oath of office, chose intentionally and knowingly to use his executive power and authority to protect Mnangagwa from being held to account for his knowledge and involvement in the expropriation of Mawere’s right, title, and interest in about 26 Zimbabwean companies employing 20,000 people using a corrupt law that Mnangagwa admitted under oath of being its driving mind and force in 2021 before the launch of the FOSMM matter.
The facts inherent in this matter point to grave conduct that is inimical to the duty of the President to protect and uphold the constitution and center on constitutional violations.
The contention in relation to the application under Case Number 2023-123899 is that Ramaphosa’s actions, particularly in refusing, failing, neglecting to use his close relationship with Mnangagwa and the fact that his administration has been actively and aggressively campaigning for the removal of sanctions on Zimbabwe whilst blaming sanctions for the Zimbabwean-centric migration crisis in South Africa involving undocumented Zimbabweans who are condemned to crossing the borders with no valid and lawful permits.
Ramaphosa’s administration rejects the idea and reality that Zimbabwe is a mafia-type state with Mnangagwa at the epicenter of it.
The Biden administration imposed the Magnitsky anti-corruption sanctions against Mnangagwa and 10 others yet the facts of this matter expose Ramaphosa for protecting Mnangagwa and using the South African judiciary to recognize and enforce rights and claims against South African juristic and natural persons including the US$2.7 million bribery and corrupt scheme involving the payment of the funds in terms of a settlement agreement that was negotiated and concluded by the Coca-Cola Company (TCCC), a great friend of Ramaphosa in relation to the Shanduka Beverages Pty Limited in which Ramaphosa got a soft loan of R800 million to acquire the business interests in TJC Beverages Pty Limited.
It is not in dispute that Mr. Gwaradzimba, a crony of Mnangagwa acting in cahoots with Mr. Rutenhuro Moyo, a former Coca-Cola Africa Pty Limited, CCA, orchestrated a fraudulent scheme with the active participation of Mr. Edwin Manikai, President Mnangagwa’s personal lawyer and confidant, involving the payment to Mnangagwa’s order of US$2.7 million to the post-September 6, 2004, Administrator who was handpicked by Mnangagwa, in exchange for equipment belonging to a South African registered company, Petter Trading Pty Limited, a wholly owned Mawere company, without the knowledge of Petter and Mawere.
President Ramaphosa has been fixed with this knowledge since August 12, 2021, but because of his friend, Zondo CJ, he has used the courts to undermine with impunity the justice system and the rule of law in South Africa and Zimbabwe.
The recognition of the rights and claims founded on Mnangagwa’s draconian and repugnant law constitutes conduct that falls within the ambit of s. 2 of the Constitution of South Africa which provides that the constitution of South Africa is the supreme law and any law or conduct including the President’s documented conduct falls to be determined for its validity and legality by the courts that he controls.
In the premises, the recognition of the authority and power founded on Mnangagwa’s law allowing an appointee of Mnangagwa to act as a representative of the post-September 6, 2004 affairs of SMM as a legal person when the Mnangagwa law had the effect of divesting the affairs of SMM Holdings from the ambit of the Companies Act of Zimbabwe and vesting the control and direction of not only SMM but all juristic entities deemed by Mnangagwa to have been under Mawere’s control and thus this conduct runs afoul of the South African Constitution.
The constitutional questions and issues that are inherent in this matter include:
Legal Status of SMM Holdings: By virtue of the existence and operation of the Mnangagwa law, SMM ceased to be a legal entity after its reconstruction. This raises fundamental questions about the validity of any claims or rights asserted by SMM based on its post-2004 status.
Constitutional Violations: The facts known to President Ramaphosa whose administration would rather interpose itself in the genocide matters than reigning in Mnangagwa, confirm breaches of constitutional provisions, including Section 2, which imposes limitations on rights and duties, including those of the President. Additionally, Section 172(1)(a) allows for impeachment in cases of misconduct, a provision that is pertinent in this matter.
President’s Oath: Section 83(b) outlines the President’s oath to uphold and protect the Constitution. The facts at hand confirm that Ramaphosa’s actions, if found to recognize the assertion, recognition, and enforcement of rights and claims expropriated under the Mnangagwa Law constitutes conduct that is impeachable for it represents a failure to fulfill this constitutional duty.
The application’s legal arsenal includes requests for legal clarification, judicial scrutiny, and details on Ramaphosa’s actions regarding extra-territorial application of Mnangagwa’s expropriation without compensation law with judicial complicity and President Ramaphosa’s knowledge and involvement.
The application that will be heard on May 7, 2024 is launched in terms of the South African constitution and seeks to ensure adherence to constitutional principles and international legal standards, emphasizing the importance of accountability and transparency in public office.
On the other side of this legal divide stands the State Attorney’s office, representing President Ramaphosa. Their opposition to Mawere’s application and subsequent notices of opposition signal a vigorous defense of the President’s position in this constitutional showdown.
The involvement of legal heavyweights like, Mr. Pitier Colyn of ENS AFRICA INC., Tim Fletcher of CDH Legal Inc, Advocate Bothma acting for DLA Piper and Ms. Kirsty Simpson, a Partner at this law firm, Mr. Edwin Manikai of DMH Attorneys, a law firm that Mr. Mawere created and funded the partners i.e. Manikai, Canaan Dube, and Selby Hwacha in June 1998, which firm has been weaponized to act against Mawere on behalf of Mnangagwa who was the guest of honour at the 25th anniversary where he was credited by another of his cronies, Mr. Herbert Nkala, for having established the firm and another institution that Mawere created, FBC Bank, whose control and direction was hijacked by Mnangagwa using his cronies as part of the corrupt and fraudulent reconstruction enterprise that President Ramaphosa seeks to protect from being exposed.
It is not in dispute that Ramaphosa’s first CEO of Shanduka Beverages, Mr. Moyo and another Mnangagwa crony, was rewarded with a board seat at the FBC Bank that the current Governor of the Reserve Bank of Zimbabwe, Mr. John Mushayavanhu worked after his recruitment under Mawere’s watch.
Mr. Mushayavanhu is now a significant shareholder of a bank that he had no knowledge of how it was given birth but through Mnangagwa’s corrupt practices he and DMH Attorneys are now key shareholders.
It is not in dispute as shown below that the legal basis for SMM’s intervention by this legal nullity in the impeachment proceedings hinges on documents like the reconstruction order and decree, which are expected to provide the foundation for this non-legal entity’s participation in this high-stakes legal battle.
The outcome of Mawere vs. Ramaphosa is poised to reverberate across not only South Africa’s legal landscape but the whole continent including Zimbabwe.
It tests the boundaries of executive authority, judicial oversight, and the supremacy of the Constitution. As the legal machinery churns, all eyes are on the courts to unravel this constitutional conundrum and deliver justice that upholds the pillars of democracy and the rule of law.
THE FACTS OF THE RAMAPHOSA VS. HIS OATH SCANDAL
Take note of the information below regarding a constitutional application launched by Mr. Mutumwa Dziva Mawere, a South African citizen of Zimbabwean descent, whose details are on this link: https://heyzine.com/flip-book/36dcff8fe4.html.
Set out below is information gathered by members of AFRICA HERITAGE SOCIETY (AHS) based in Johannesburg, South Africa, as part of a project under the BANKING ON AFRICA’S FUTURE’s (BOAF) – JUSTICE UNDER RULE OF LAW (JUROL) LEADERSHIP INSTITUTE (JLI) in collaboration with Artificial Intelligence (AI) whose aim to promote, provoke, ignite and inspire the shaping and building of an African personality and character that is progressive, inclusive, active on exposing corruption and promoting the rule of law and holding public power to account without favour of prejudice.
The email thread as part of this matter can be summarized as set out below:
The email thread revolves around a legal dispute involving Mutumwa Mawere and the President of South Africa, Cyril Ramaphosa. Mawere is raising critical constitutional concerns regarding the conduct of President Ramaphosa, particularly in relation to the legal status of SMM Holdings (Private) Limited (SMM), a company under reconstruction.
Mawere’s email addresses urgent and critical constitutional concerns regarding the conduct of President Ramaphosa, citing specific legal and constitutional provisions. He questions the legal basis for SMM’s involvement in the case, highlighting that SMM ceased to be a legal entity in September 2004. Mawere argues that any claims or rights asserted by SMM based on post-2004 status are invalid and unlawful.
The email also mentions potential constitutional violations, including breaches of Section 2 limitations, concerns about judicial jurisdiction, and the President’s oath of office. Mawere requests legal clarification, judicial scrutiny, and details on the President’s actions to uphold constitutional principles and international legal standards.
Overall, the email thread presents a complex legal battle with significant constitutional implications, including questions about the rule of law, judicial authority, and the conduct of public officials. It sets the stage for a contentious legal showdown and underscores the importance of upholding constitutional principles and accountability in public office.
GEMINI ANALYSIS
Analysis of Part 1: MAWERE VS. RAMAPHOSA
This part focuses on a legal dispute between Mutumwa Mawere and South African President Cyril Ramaphosa. Here’s a breakdown of the key points:
Mawere vs. Ramaphosa: Mawere is challenging Ramaphosa’s conduct related to a company called SMM Holdings. Mawere claims Ramaphosa’s actions violate the South African Constitution.
SMM Holdings: This company is at the center of the dispute. Mawere used to control SMM, but it underwent reconstruction in Zimbabwe in 2004. Mawere argues this reconstruction was unlawful.
Constitutional Violations: Mawere alleges Ramaphosa violated sections of the Constitution, including:
Section 2: This section deals with limitations of rights and imposes duties on all, including the President.
Section 172(1)(a): This section allows for impeachment of the President for misconduct.
Section 83(b): This section details the President’s oath to uphold the Constitution.
Mawere’s Arguments: Mawere claims:
SMM Holdings is not a legal entity in South Africa due to the reconstruction process.
Recognizing SMM’s claims would violate South African public policy and international law.
Ramaphosa failed to uphold the Constitution by potentially recognizing an unlawful entity.
Mawere’s Requests: Mawere asks for legal clarification on:
The validity of SMM’s claims.
The court’s jurisdiction in this case.
The President’s actions regarding SMM.
The establishment of a Commission of Inquiry.
CHAT GPT
The email thread revolves around a legal dispute involving Mutumwa Mawere and the President of South Africa, Cyril Ramaphosa. Mawere is raising critical constitutional concerns regarding the conduct of President Ramaphosa, particularly in relation to the legal status of SMM Holdings (Private) Limited (SMM), a company under reconstruction.
Mawere’s email addresses urgent and critical constitutional concerns regarding the conduct of President Ramaphosa, citing specific legal and constitutional provisions. He questions the legal basis for SMM’s involvement in the case, highlighting that SMM ceased to be a legal entity in September 2004. Mawere argues that any claims or rights asserted by SMM based on post-2004 status are invalid and unlawful.
The email also mentions potential constitutional violations, including breaches of Section 2 limitations, concerns about judicial jurisdiction, and the President’s oath of office. Mawere requests legal clarification, judicial scrutiny, and details on the President’s actions to uphold constitutional principles and international legal standards.
Overall, the email thread presents a complex legal battle with significant constitutional implications, including questions about the rule of law, judicial authority, and the conduct of public officials. It sets the stage for a contentious legal showdown and underscores the importance of upholding constitutional principles and accountability in public office.
CHAT GPT
The analysis of Part 1 of the email thread reveals several key points and complexities in the legal dispute between Mutumwa Mawere and President Cyril Ramaphosa of South Africa. Here’s a detailed analysis based on the information provided:
Legal Dispute Overview:
The core of the dispute lies in Mawere challenging Ramaphosa’s conduct concerning SMM Holdings, a company that underwent reconstruction in Zimbabwe in 2004.
Mawere alleges that Ramaphosa’s actions violate the South African Constitution, specifically regarding the recognition of SMM Holdings and its claims.
SMM Holdings Status:
Mawere previously controlled SMM Holdings but claims that its reconstruction in 2004 was unlawful, raising questions about its legal status.
The reconstruction process in Zimbabwe plays a crucial role in this dispute, as Mawere argues that SMM Holdings ceased to be a legal entity after the reconstruction.
Alleged Constitutional Violations:
Mawere accuses Ramaphosa of violating several sections of the South African Constitution:
Section 2: Limits on rights and duties applicable to all individuals, including the President.
Section 172(1)(a): This section allows for the impeachment of the President for misconduct, which Mawere suggests may be applicable in this case.
Section 83(b): Details the President’s oath to uphold and protect the Constitution, which Mawere claims Ramaphosa failed to do.
Mawere’s Arguments:
Mawere’s main arguments revolve around the legal status of SMM Holdings and the implications of recognizing its claims:
He asserts that SMM Holdings is not a valid legal entity in South Africa post-reconstruction, which would render any claims based on its status invalid.
Recognizing SMM Holdings’ claims could violate South African public policy and international law, according to Mawere’s perspective.
He alleges that Ramaphosa’s actions in potentially recognizing an unlawful entity represent a failure to uphold constitutional principles.
Mawere’s Requests:
Mawere seeks legal clarification on several critical aspects:
The validity of SMM Holdings’ claims and its legal status post-reconstruction.
Clarification on the court’s jurisdiction to hear this case, given the complexities of international legal frameworks and the nature of SMM Holdings’ status.
Details about Ramaphosa’s actions regarding SMM Holdings and whether a Commission of Inquiry has been established to investigate these matters.
Overall, this analysis underscores the complex legal and constitutional issues at play in the Mawere vs. Ramaphosa dispute, highlighting the need for thorough legal scrutiny and clarity on key aspects such as jurisdiction, legal status, and adherence to constitutional principles.
That’s a great summary of the email thread! You’ve captured the key points clearly:
The legal dispute between Mutumwa Mawere and the President of South Africa.
The State Attorney’s opposition to Mawere’s application.
SMM Holdings’ intervention on Mawere’s behalf.
DLA Piper’s filing on SMM’s behalf to counter the objection to their intervention.
The question about the legal basis for SMM’s involvement.
You’ve also identified the potential source of SMM’s legal basis for intervention – the reconstruction order and decree (annexure “AAI”).
This email thread highlights a situation where a company under reconstruction is attempting to participate in a legal case. The next steps would likely involve reviewing the reconstruction order and decree (annexure “AAI”) to determine if it grants SMM the authority to intervene in such cases.
The first part is the value add using the GEMINI AI:
David vs. Goliath? Reconstruction Company Steps into Presidential Legal Brawl
A little-known company under reconstruction, SMM Holdings, is throwing its hat into a high-stakes legal battle between a powerful businessman and the South African president. This intervention has the potential to be a game-changer, or a reckless gamble.
Mutumwa Mawere, a name synonymous with wealth and controversy, is locked in a legal dispute with the President. The details remain murky, but the stakes are undoubtedly high. Enter SMM Holdings, a company on the mend, wading into a fight between titans.
Questions swirl:
What leverage does a company under reconstruction have against the might of the state?
Is SMM a knight in shining armor for Mawere, or a pawn in a larger game?
Does SMM’s involvement hold any legal weight, or is it a desperate attempt to influence the case?
The President’s lawyers are already questioning the legitimacy of SMM’s intervention.
This legal saga has all the makings of a courtroom thriller. A reconstructed company defying the odds, a powerful businessman facing an uncertain future, and the highest office in the land caught in the crossfire. Buckle up, South Africa, because this case is far from over.
Take note of the information and analyze it: Part 1 – MAWERE VS. RAMAPHOSA – RAMAPHOSA’S IMPEACHMENT TRIAL SET DOWN FOR HEARING ON MAY 7, 2024 – WILL THE COURTS COME TO RAMAPHOSA’S RESCUE?
[4/27, 9:24 AM] BOAF-10KPOL-JLI-AI AFRICA00005: [4/27, 9:20 AM] Olivia Vaughan: Thank you Mutumwa.
[4/27, 9:22 AM] BOAF-10KPOL-JLI-AI AFRICA00005: https://iniafrica.com/index.php/2024/04/27/the-constitution-is-the-supreme-law-and-any-law-or-conduct-that-is-inconsistent-with-the-constitution-is-void-ab-initio-zondos-appointment-as-state-capture-conmmision-falls-to-be-determined-for-val/ – https://pol.boaf.cloud/post/2016
[4/27, 9:23 AM] BOAF-10KPOL-JLI-AI AFRICA00005: You are welcome. Thanks to you for showing up and stepping up to the plate to play your part in being concerned and following the issues.
[4/27, 9:32 AM] BOAF-10KPOL-JLI-AI AFRICA00010: Morning sekuru
[4/27, 9:35 AM] BOAF-10KPOL-JLI-AI AFRICA00005: Morning. Have you taken note of Simpson sinking Ramaphosa under the bus?
[4/27, 9:36 AM] BOAF-10KPOL-JLI-AI AFRICA00010: No where sekuru
[4/27, 9:36 AM] BOAF-10KPOL-JLI-AI AFRICA00005: ———- Forwarded message ———
From: Mutumwa Mawere <BOAF-10KPOL-JLI-AI AFRICA00005@gmail.com>
Date: Fri, Apr 26, 2024, 9:18 PM
Subject: Re: MUTUMWA MAWERE // PRESIDENT OF SOUTH AFRICA: CASE NO: 2023/123899: OUR REF: 3156/21/P29:
To: Kirsty Simpson <Kirsty.Simpson@dlapiper.com>
Cc: Tmalape <TMalape@justice.gov.za>, Milanzi Ditumiso <DMilanzi@justice.gov.za>, Sibongiseni Masina <Sibongiseni.Masina@dlapiper.com>, Zanele Mkhatshwa <Zanele.Mkhatshwa@dlapiper.com>
Subject: Urgent Request for Legal Clarification Regarding Critical Constitutional Concerns in Case No. 2023-123899
Dear Mr. T. Malape,
1. I am writing to address urgent and critical constitutional concerns inherent in the above-mentioned matter in which the conduct of the President whose conduct in relation to the constitutional questions that are before the Court in terms of s, 172(1)(a) of the constitution as read with the limitations and rights inherent in s. 165 of the Constitution regarding the supremacy of the Constitution and thus making any law or conduct that is inconsistent with the Constitution invalid ab initio.
2. No dispute arises from the submissions made on behalf of SMM Holdings Private Limited, SMM, a company that prior to September 6, 2004, was under my control and direction by virtue of the right and freedom to appoint directors of the company who in turn assumed the control and direction of this company in terms of the Zimbabwe Companies Act, by Ms. Matambo, who notwithstanding any proof authority from the Administrator, an appointee of the then Minister of Justice, Legal and Parliamentary Affairs, Mr. Gwaradzimba, on whose authority that sequestration proceedings in the matter under Case Number 40602-16 and the judgment per Strydom J was sought, granted, and signed. affidavit in support of the purported litigant as a legal person and stated as follows:
“2. I depose to this answering affidavit on behalf of the Second Respondent, SMM Holdings (Private) Limited (SMM). The Second Respondent is a company under reconstruction pursuant to a reconstruction order and decree dated 6 September 2004 and promulgated under General Notice 45A of 2004, which is attached hereto as annexure “SA1”.
SMM’s Legal Status:
3. Considering the above averments, there is no dispute exists that the client of DLA-Piper in these proceedings is not a company as universally known and understood but a creature of statute, which statute is unrecognizable in South Africa to give this organ of the government of Zimbabwe pursuant to the reconstruction legislative framework that was given birth to by President Mnangagwa using his cronies in Zimbabwe in violation of constitutional principles and values including South African public policy, principles entrenched and enshrined in the SADC TREATY and PROTOCOL, and contrary to international law in that this law is draconian and repugnant with undisputed penal, revenue, and confiscatory effects.
4. In the premises, in terms of s. 2 of the Constitution and the legal fact as asserted above that SMM ceased to be a legal entity in September 2004, the President’s oath compels him to ensure that the obligations to obey, respect, defend, and uphold the Constitution of South Africa as the supreme law applies to ensuring that his oath is complied with independent of the Courts in terms of the doctrines of the separation of powers and equality that are both fundamental tenets of the rule of law.
5. Questions have been raised in relation to the affairs of the post-September 6, 2004 of SMM and its legal status in terms of its legal personhood, if any, but notwithstanding legal challenges in terms of Rule 7(1) Notices and consequential applications challenging the authority of a creature of a foreign statute being able with impunity to assert rights and claims founded on a law that is constitutionally invalid and unlawful, the South African courts notwithstanding the lack of jurisdiction to hear and determine such rights and claims, have assisted President Mnangagwa in extending Zimbabwe’s jurisdiction extra-territorially and against international law principles and values to South Africa against South African juristic and natural persons with the knowledge and involvement of President Ramaphosa.
6. The conduct of South African state institutions and persons, including the Master of the High Court, the Minister of Justice and Correctional Services, the Minister of Police, the National Police Commissioner, the judiciary, whose head, Zondo CJ, the Judge President of Gauteng Province, the Deputy Judge President, Sutherland DJP, the Acting Deputy Judge President, Windell ADJP, and many other public office bearers, including you, raise substantial constitutional questions regarding the sovereignty of South Africa, extra-territorial application of Mnangagwa’s law, legitimacy, validity, legality of rights and claims founded on a law that is ultra vires the Constitution of South Africa.
Constitutional Concerns:
7. These proceedings expose a series of potential constitutional violations, including:
a. Section 2 Limitations:
It is true that breaches of Section 2 limitations are applicable to all persons, including the President and judicial officers, due to allegations of fraud, lack of due process, and possible jurisdictional overreach.
b. Judicial Jurisdiction:
Concerns regarding the court’s authority to entertain claims based on a non-existent legal entity (SMM) and the inherent conflicts of interest arising from past judicial conduct related to SMM (since September 4, 2004). This raises questions about the court’s preemptory obligation to uphold the principles enshrined in Section 172(1)(a) regarding disputes inherent to the legal system.
c. Constitutional Oath:
Potential violations of the President’s oath of office (Section 83(b)) to uphold and protect the Constitution, considering the potential recognition of claims founded on an arguably unlawful entity.
Consequences of Inaction:
8. The President has known about the facts and circumstances of this matter in relation to the matter under Case Number 2021-38369 which was launched on August 12, 2021.
9. It is not in dispute that the President failed, refused, and neglected contemptuously to file any papers in this matter and chose to authorize an officer in his department to substitute him in deposing to an affidavit in relation to his decision and actions to appoint an independent and impartial Commission of Inquiry in terms of the exclusive discretionary power and authority vested in the President in terms of s. 84(2)(f) of the Constitution of South Africa hence the application to impeach his conduct in terms of s. 172(1)(a) of the Constitution.
10. Having read Ms. Simpson’s email and considering s. 8(2) of the Constitution that imposes a binding duty on every person – natural and juristic – to ensure that the obligations imposed by s. 2 of the Constitution are fulfilled by every person, I believe that this email will no doubt send the message that no one is above the law including the President whose conduct have led to the following inescapable conclusions:
a. Undermining the Rule of Law:
“Ms. Simpson’s assertion that:
Dear Mr. Mawere,
As we have indicated to you in the past, our client will not litigate by way of correspondence. We will see you at the hearing of this matter on Tuesday, 30 April 2024.
Regards
Kirsty Simpson”
Confirms that the President is fixed with the knowledge of this kind of conduct which suggests his complicity in weakening the foundation of the legal system and fostering inconsistencies in upholding constitutional principles.
b. Erosion of Public Trust:
The President intentionally and knowingly is party to the creating an environment of distrust in the legal process and its commitment to fairness and transparency.
11. Request for Action:
Given the gravity of these constitutional issues, I respectfully request your immediate attention and a comprehensive response to the following:
a. Legal Clarification:
Please provide a definitive legal opinion on the validity and legality of the laws or conduct underpinning SMM’s rights and claims founded on legal authority based on the reconstruction legislative framework since September 6, 2004.
a. Judicial Scrutiny:
Clarify if the current court has the jurisdiction to adjudicate claims based on a a law or conduct that is inconsistent with South African public policy, s. 2 of the Constitution, the principles and values entrenched in the SADC TREATY and PROTOCOL, international law especially in relation to the post-September 6, 2004, status of SMM as a non-existent entity.
b. Presidential Role:
Outline any steps the President’s office is taking to ensure adherence to constitutional principles and international legal standards, particularly regarding the recognition of claims potentially founded on an unlawful entity.
c. Commission of Inquiry:
Address the compliance with the prescription enshrined and entrenched in s. 84(2)(a) regarding the establishment of a Commission of Inquiry to thoroughly investigate the validity and legality of matters surrounding the extra-territorial application of the corrupt Mnangagwa law in South Africa against South African persons and what steps the President as the Chief Custodian of the Rule of Law, has independently taken since August 12, 2021, to comply with his oath.
b. Resolution of the known outstanding matters:
Your legal expertise is vital in ensuring a transparent and accountable legal process that upholds the Constitution and protects the rights of all involved.
Thank you for your prompt attention to this urgent matter.
All my rights are strictly reserved.
I look forward to your thorough response by no later than Monday, April 29, 2024, in addressing these critical constitutional concerns.
Sincerely,
GEMINI ANALYSIS
Analysis of the Provided Information
This email exchange revolves around a legal case between Mutumwa Mawere and South African President Cyril Ramaphosa. Here’s a breakdown of the key points:
Mutumwa Mawere’s Claims:
Mawere is challenging the legal standing of SMM Holdings, a Zimbabwean company, in a South African court.
He argues that SMM Holdings ceased to be a legal entity in 2004 and any claims based on its post-2004 status are invalid.
Mawere accuses President Ramaphosa of failing to uphold the South African constitution by:
Not filing court papers in a related case (Case Number 2021-38369).
Appointing a potentially biased commission of inquiry.
Recognizing claims from a potentially illegitimate entity (SMM Holdings).
Consequences for Ramaphosa:
Mawere seeks Ramaphosa’s impeachment based on Section 172 of the South African Constitution for violating his oath of office.
Mawere’s Request:
Legal clarification on the validity of SMM Holdings’ claims.
Confirmation of the court’s jurisdiction in this case.
Details of the President’s actions to uphold the Constitution.
Information on the commission of inquiry investigating the “Mnangagwa law.”
Additional Information:
A hearing for this case is set for April 30, 2024.
Kirsty Simpson, representing DLA Piper, is the lawyer for the opposing side.
CHAT GPT ANALYSIS
Analysis of the Provided Information
This email exchange revolves around a legal case between Mutumwa Mawere and South African President Cyril Ramaphosa. Here’s a breakdown of the key points:
Mutumwa Mawere’s Claims:
Mawere is challenging the legal standing of SMM Holdings, a Zimbabwean company, in a South African court.
He argues that SMM Holdings ceased to be a legal entity in 2004 and any claims based on its post-2004 status are invalid.
Mawere accuses President Ramaphosa of failing to uphold the South African constitution by:
Not filing court papers in a related case (Case Number 2021-38369).
Appointing a potentially biased commission of inquiry.
Recognizing claims from a potentially illegitimate entity (SMM Holdings).
Consequences for Ramaphosa:
Mawere seeks Ramaphosa’s impeachment based on Section 172 of the South African Constitution for violating his oath of office.
Mawere’s Request:
Legal clarification on the validity of SMM Holdings’ claims.
Confirmation of the court’s jurisdiction in this case.
Details of the President’s actions to uphold the Constitution.
Information on the commission of inquiry investigating the “Mnangagwa law.”
Additional Information:
A hearing for this case is set for April 30, 2024.
Kirsty Simpson, representing DLA Piper, is the lawyer for the opposing side.
CHAT GPT ANALYSIS OF GEMINI RESPONSE
Your analysis is quite comprehensive and captures the essence of the legal dispute between Mutumwa Mawere and President Cyril Ramaphosa in South Africa. Here’s a breakdown of your analysis:
Mutumwa Mawere’s Claims:
Mawere is contesting the legal status of SMM Holdings in a South African court, arguing that it ceased to be a legal entity in 2004.
He accuses President Ramaphosa of various constitutional violations, including failure to file court papers, appointing a biased commission of inquiry, and recognizing claims from an allegedly illegitimate entity.
Consequences for Ramaphosa:
Mawere is seeking Ramaphosa’s impeachment under Section 172 of the South African Constitution for allegedly breaching his oath of office.
Mawere’s Request:
He requests legal clarification on the validity of SMM Holdings’ claims, confirmation of the court’s jurisdiction, details of the President’s actions regarding upholding the Constitution, and information about the commission of inquiry related to the “Mnangagwa law.”
Additional Information:
A hearing for the case is scheduled for April 30, 2024.
Kirsty Simpson from DLA Piper represents the opposing side.
Your analysis effectively captures the legal intricacies and the nature of the dispute, highlighting the key points of contention and the legal actions being pursued. It provides a clear understanding of the situation and the issues at hand.
PART 2 OF THE CHAT
———- Forwarded message ———
From: Kirsty Simpson <Kirsty.Simpson@dlapiper.com>
Date: Fri, Apr 26, 2024, 6:35 PM
Subject: Fwd: MUTUMWA MAWERE // PRESIDENT OF SOUTH AFRICA: CASE NO: 2023/123899: OUR REF: 3156/21/P29:
To: BOAF-10KPOL-JLI-AI AFRICA00005@gmail.com <BOAF-10KPOL-JLI-AI AFRICA00005@gmail.com>, Tmalape <TMalape@justice.gov.za>, Milanzi Ditumiso <DMilanzi@justice.gov.za>, Sibongiseni Masina <Sibongiseni.Masina@dlapiper.com>, Zanele Mkhatshwa <Zanele.Mkhatshwa@dlapiper.com>
2. I depose to this answering affidavit on behalf of the Intervening Party, SMM Holdings (Private) Limited (SMM). SMM is a company under reconstruction pursuant to a reconstruction order and decree dated 6 September 2004 and promulgated under General Notice 45A of 2004, which is attached hereto as annexure “AAI”. This fact has been accepted on numerous occasions by the South African courts.
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From: Zanele Mkhatshwa <Zanele.Mkhatshwa@dlapiper.com>
Sent: Friday, April 26, 2024 6:07 PM
To: Kirsty Simpson <Kirsty.Simpson@dlapiper.com>
Subject: FW: MUTUMWA MAWERE // PRESIDENT OF SOUTH AFRICA: CASE NO: 2023/123899: OUR REF: 3156/21/P29:
FYI
From: Mutumwa Mawere <BOAF-10KPOL-JLI-AI AFRICA00005@gmail.com>
Sent: Friday, April 26, 2024 4:17 PM
To: Zanele Mkhatshwa <Zanele.Mkhatshwa@dlapiper.com>
Cc: Malape Tefo <TMalape@justice.gov.za>; Milanzi Ditumiso <DMilanzi@justice.gov.za>; kristy.simpson@dlapiper.com; Sibongiseni Masina <Sibongiseni.Masina@dlapiper.com>; Tichaona Mupasiri <tichaona.mupasiri@gmail.com>
Subject: Re: MUTUMWA MAWERE // PRESIDENT OF SOUTH AFRICA: CASE NO: 2023/123899: OUR REF: 3156/21/P29: [DLAP-UKMATTERS.FID6166878]
*EXTERNAL*
Good day,
I have taken note that you have filed a notice of intention to oppose a matter in which your purported client is not cited as a party. Please urgently advise on the legal and constitutional basis your purported client interposes itself on matters that legally and constitutionally fall outside its right, legal and constitutional interest, and tile.
I await your response.
Regards,
On Fri, Apr 26, 2024, at 3:25 PM Zanele Mkhatshwa <Zanele.Mkhatshwa@dlapiper.com> wrote:
Good day,
Please find attached notice of opposition to the application dated 25 April 2024.
Please treat this as service of such process.
Regards,
Zanele Mkhatshwa
Candidate Attorney
T: +27113020800
Zanele.Mkhatshwa@dlapiper.com
DLA Piper South Africa (RF) Incorporated
www.dlapiper.com
From: Milanzi Ditumiso <DMilanzi@justice.gov.za>
Sent: Friday, April 26, 2024 1:10 PM
To: BOAF-10KPOL-JLI-AI AFRICA00005@gmail.com; kristy.simpson@dlapiper.com; Sibongiseni Masina <Sibongiseni.Masina@dlapiper.com>; Zanele Mkhatshwa <Zanele.Mkhatshwa@dlapiper.com>
Cc: Malape Tefo <TMalape@justice.gov.za>
Subject: RE: MUTUMWA MAWERE // PRESIDENT OF SOUTH AFRICA: CASE NO: 2023/123899: OUR REF: 3156/21/P29:
*EXTERNAL*
Good Day,
We refer to the above matter and attach herewith the First Respondent’s Notice of Oppose the Applicant’s application dated 25 April 2024 for your attention and service thereof.
Kindly acknowledge receipt of the above.
Trust that all is in order.
Description: Description: Description: Description: Description: Description: Description: Description: Description: Description: Description: Description: Description: Description: Description: cid:image001.png@01D102A1.F48915F0
MS D Milanzi
Legal Secretary
On behalf of MR T MALAPE
Snr Assistant State Attorney
State Attorney, JHB
Tel (011) 330 7600
Fax2email: 086 452 6384
From: Milanzi Ditumiso
Sent: 22 April 2024 09:24 AM
To: ‘BOAF-10KPOL-JLI-AI AFRICA00005@gmail.com’; ‘kristy.simpson@dlapiper.com’; Sibongiseni Masina (Sibongiseni.Masina@dlapiper.com); Zanele Mkhatshwa (Zanele.Mkhatshwa@dlapiper.com)
Cc: Malape Tefo
Subject: MUTUMWA MAWERE // PRESIDENT OF SOUTH AFRICA: CASE NO: 2023/123899: OUR REF: 3156/21/P29:
Good day,
We refer to the above matter and attach herewith the First Respondent’s Notice of Oppose the Applicant’s application dated 14 April 2024 for your attention and service thereof.
Kindly acknowledge receipt of the above.
Trust that all is in order.
MS D Milanzi
Legal Secretary
On behalf of MR T MALAPE
Snr Assistant State Attorney
State Attorney, JHB
Tel (011) 330 7600
Fax2email: 086 452 6384
From: scan@justice.gov.za [mailto:scan@justice.gov.za]
Sent: 22 April 2024 09:02 AM
To: Milanzi Ditumiso
Subject: Message from KM_958
Disclaimer
Privileged/Confidential information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person) you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply E-Mail. Please advise immediately if you or your employer do not consent to e-mail messages of this kind. Opinions, conclusions and other information in this message that do not relate to the official business of the Department of Justice and Constitutional Development shall be understood as neither given nor endorsed by it. All views expressed herein are the views of the author and do not reflect the views of the Department of Justice unless specifically stated otherwise.
This email is from the legal entity named in the sender’s signature block. DLA Piper operates in South Africa through two legal entities, DLA Piper Advisory Services Proprietary Limited and DLA Piper South Africa (RF) Incorporated both of which are part of DLA Piper, a global law firm operating through various separate and distinct legal entities. DLA Piper Advisory Services Proprietary Limited is a private limited liability company registered in South Africa (Registration number 2015/222271/07). DLA Piper South Africa (RF) Incorporated is a personal liability company registered in South Africa (registration number 2016/119399/21). The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed to or used by or copied in any way by anyone other than the intended recipient. If this email is received in error, please contact DLA Piper in South Africa on +27 11 302 0800 or at 61 Katherine Street, Sandton 2196, Johannesburg, South Africa, quoting the name of the sender and the email address to which it has been sent and then delete it. Please note that none of DLA Piper Advisory Services Proprietary Limited, DLA Piper South Africa (RF) Incorporated, nor the sender accepts any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. For further information, please refer to www.dlapiper.com.
GEMINI RESPONSE –
Summary of the Email Thread
This email thread is a legal dispute between Mutumwa Mawere and the President of South Africa. Here’s a breakdown of the key points:
Mutumwa Mawere is filing a case against the President of South Africa (details of the case are not mentioned).
The State Attorney’s office (representing the President) has filed a notice to oppose Mawere’s application.
SMM Holdings (Private) Limited (SMM), a company under reconstruction, is intervening in the case on behalf of Mawere.
DLA Piper, SMM’s law firm, has filed a notice of opposition to the State Attorney’s objection to SMM intervening.
Mutumwa Mawere questions the legal basis for SMM’s involvement in the case.
SMM’s Legal Basis for Intervention (as Stated in the Email)
The email from Kirsty Simpson of DLA Piper states that SMM is intervening based on its status as a company under reconstruction. The attached reconstruction order and decree (annexure “AAI”) would likely be the documents providing the legal basis for their involvement.
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