Introduction:
The extra-territorial application of the Reconstruction Act, a law that President Mnangagwa admitted under oath to have authored and led its prosecution against 26 companies employing 20,000 people that were deemed to have been owned and controlled by Mr. Mutumwa Mawere, a Zimbabwean-born South African citizen, is under scrutiny in the above-mentioned matter in which at the core of Mr. Mawere’s dispute with the South African Master of the High Court, is that the Master of the High Court in terms of s. 7 and s. 8, as an organ of the government of South Africa, lacked title and jurisdiction to recognize and enforce rights and claims against SA persons including Mawere that were acquired under a law that is inconsistent with s. 2 of the Constitution of South Africa.
Dr. Shumba, who was the Chairman of the Parliamentary Portfolio Committee on Mines and Mining Development, was removed for challenging the legality and validity of the Reconstruction Act as well as the Chinamasa-issued reconstruction order.
The Chinamasa order that was issued in terms of the reconstruction decree that was promulgated using the state of emergency powers with Mnangagwa as the driving mind and force using his coup cabal had the effect of divesting and depriving the bona fide shareholders of the targeted companies of their control and management.
Because of the decree, Ms. R. Matambo, who deposed to an affidavit seeking the leave of the South African court to intervene in the unopposed application against the Master of the High Court, had this to say under oath concerning the legal identity and status of the litigant:
“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 according to a reconstruction order and decree dated September 6, 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.
3. DMH are the Zimbabwean attorneys of record for SMM, and in that role, they have been involved in the affairs of SMM since 2004, including in various litigations in South Africa. I have been involved in various litigation since about 2007.
4. SMM has authorized its attorneys of record to oppose this application, as appears from the special power of attorney attached hereto as annexure “AA2”.”
Shocked by the above aversions, Dr. Shumba notified the parties in the matter of his intention to intervene in the matter as set out on this link: https://heyzine.com/flip-book/59e4415d7d.html.
Dr. Shumba has filed an affidavit in support of his application for leave to intervene as set out on this link: https://heyzine.com/flip-book/5e3353a2dc.html.
The battle regarding the validity and legality of President Mnangagwa’s abuse of public power to deliver his predetermined outcomes, his practices and custom of coup-centric approaches to satisfy his unbridled quest for absolute power and authority, or conduct that is inimical to the rule of law and decency, has put into focus Mnangagwa’s direct hand and mind in undermining the rule of law not only in Zimbabwe but in South Africa.
Set out below is what Mnangagwa asserted under oath in opposition to Mr. Tichaona Mupasiri’s application to impeach him using the weapon of s. 167(2)(d) as read with s. 167(3) of the Constitution that exclusively empowers the Constitutional Court of Zimbabwe to hear and determine if the President’s alleged conduct concerning the reconstruction affairs of SMM breached his oath of office:
“Ad paragraph 107-123
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.
The facts relating to SMM are known to me. These are contained in the court records. I am briefed on them. The fact that Mawere has lost his case in court is also known to me. It is a matter of public record. Besides, I am fully briefed on it.”
Dr. Shumba stated: “This ongoing legal battle surrounding SMM Holdings has brought to light a complex web of political intrigue, constitutional concerns, and alleged corruption within the corridors of public power in Zimbabwe. The focal point of this legal saga is the dichotomy between President Mnangagwa’s oath to uphold the constitution and the Minister of Mines’ representations before parliament in January 2018.”
Misrepresentations in Parliament:
Mr. Tichaona Mupasiri, the Director of Public Policy of the JUSTICE UNDER RULE OF LAW’S (JUROL) Leadership Institute said: “It is chilling that one pivotal moment in this convoluted narrative occurred when the Minister of Mines, Hon. Winston Chitando, addressed parliament in January 2018.
During this session, he asserted that SMM shares had been issued to the Zimbabwe Mining Development Corporation (ZMDC), a state-owned entity.
This representation implied that SMM was a reconstructed company under the Reconstruction Act, an assertion that has far-reaching consequences.”
Quoting directly from the parliamentary session, Dr. Daniel K. Shumba, the former Chairman of the Parliamentary Portfolio Committee on Mines and Mining Development, questioned the accuracy of the Minister’s statement. Dr. Shumba pointed out that “there was no reason for MPs to refuse Van Hoogstraten to give evidence because what is before the courts is whether it was necessary to place Hwange Colliery Company under reconstruction, and so Van Hoogstraten could have talked about his rights as a shareholder without talking about the reconstruction order.”
Contradictions in the Affidavit:
Fast forward to the current legal proceedings, and we encounter a striking contradiction. In an affidavit submitted by Ms. R. Matambo on behalf of SMM Holdings, it is boldly stated that “SMM is a company under reconstruction pursuant to a reconstruction order and decree dated 6 September 2004.” This, according to Matambo, has been accepted on numerous occasions by South African courts.
Constitutional and Legal Quandaries:
Dr. Shumba’s application for leave to intervene is grounded in his assertion of a “substantial and direct interest” and his concern over the “record of human and property rights abuses” in Zimbabwe. The contradictions between the Minister’s parliamentary representation and the contentions in SMM Holding’s affidavit raise troubling constitutional and legal questions.
The heart of the matter lies in the validity and legality of the Reconstruction Act, a piece of legislation used to justify the alleged transfer of shares to ZMDC. Dr. Shumba, drawing on his expertise in constitutional matters, human rights, and international relations, questions the South African courts’ acceptance of the Reconstruction Act, a law that, according to him, offends public policy and international law.
President Mnangagwa’s Oath:
Implicit in this legal quagmire is the oath taken by President Mnangagwa to uphold the constitution. If the allegations of misrepresentation and corruption are proven true, it raises fundamental questions about the commitment to constitutional principles at the highest levels of power.
Conclusion:
As Dr. Shumba seeks to intervene in this legal saga, the spotlight is not only on the intricate details of corporate restructuring but also on the broader implications for justice, constitutionalism, and the rule of law in Zimbabwe.
The resolution of this case may not only impact the fate of SMM Holdings but could reverberate through the corridors of power, demanding accountability for those entrusted with upholding the constitution.
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