President Ramaphosa ducks the Zimbabwe Conundrum

President Ramaphosa is the First Respondent in a case that is pending before the High Court of South Africa, Gauteng Local Division, in which the President’s refusal and failure to take any steps to use his powers to investigate serious allegations of judicial capture in the recognition and enforcement of Zimbabwe’s Reconstruction Laws in South Africa.

The Applicant is a trust, Friends of Shabanie and Mashava Mines Private Limited (FOSMM), and the cause of complaint is that on 6 September 2004, the then Minister of Justice, Legal and Parliamentary Affairs, Hon. Patrick Chinamasa, using state of emergency powers issued regulations that authorized him to issue an order with the same force and effect as a judicial order in relation to a company, SMM Holdings Private Limited (SMM), and related juristic entities.

The effect of this order was to divest and deprive the sole shareholder of SMM, SMM Holdings Limited (SMMH) of the control and direction of its subsidiaries.

After this attack on SMM using an act of state that offends international law, the Minister’s appointee who assumed the control and management of the SMM under capture or administration, then became the entity’s alter ego.

The Administrator became the representative of this new creature and the question that was put to the President is whether this creature can be recognized by SA courts when the judicial officers involved are fixed with the knowledge that the transfer of the power and authority to a creature of statute was inconsistent with prescripts of the SA constitution.

FOSMM only approached the President after exhausting all avenues for the judiciary to take cognizance of the dangerous precedent created by a number of judges that not only ignored the requirement that a foreign representative of a company under administration or judicial management must seek the leave of court to assert any rights of the company so impaired.

In terms of the rule of principle, the judiciary lacked the title to recognize and enforce the rights flowing a law that divests and deprives of rights without following any due process of the law.

Set out below is the screenshot of the face of the President’s answering affidavit:

It is worth highlighting that no affidavit was presented to the court supporting the averment by the deponent that he was authorized to oppose the Application.

Mr. Tichaona Mupasiri, Director of Public Policy for the Justice Under Rule of Law initiative, a project that is powered by FOSMM, who is the Applicant in a matter under Case Number CCZ 34/21 that is before the Constitutional Court of Zimbabwe (CCZ), said: “As a citizen, I felt compelled to approach the CCZ to establish whether President Mnangagwa’s refusal and failure to take steps to ensure that the rule of law is protected constitutes a breach of his oath. I brought to his attention that retired Judge N. Willis who presided over a matter under Case Number 2006/20235 in which the capture SMM was the Plaintiff and the Defendants included the shareholder of SMM, whose company’s control was stolen by an act of state in Zimbabwe. President Mnangagwa was boasting in his answering affidavit that the judgment in favour of the captured company, to test whether the allegation that he was personally involved in the facts and circumstances of the creation and prosecution of the law that led to the expropriation of rights.

To my surprise, President Mnangagwa saw no evil and heard no evil in relation to the extra-territorial application of this law that was described as a “satanic and barbaric law” by the exiled former Minister, Professor Moyo.

Against the backdrop of President Mnangagwa’s refusal to see the danger that this law poses to the rule of law in Zimbabwe, I was compelled to approach Acting Chief Justice Zondo, to alert him to the dangerous precedent that was created by a crooked judge like Willis J who on paragraph 94 of his judgment, actually imported evidence in his judgment in order to justify a pre-determined finding.

On the question of recognizing a representative of a company that was created from a law rather than from foreign proceedings, I was shocked that a South African judge would have the audacity to ignore the limitations imposed by the SA laws and Constitution, the SADC Protocol, and Treaty, and international law and proceed to grant a judgment in favour of a foreign state dressed as a company.”

This is what Willis J penned:

The claim by the GOZ litigating as a company through the agency of a state-appointed representative of a company was as follows:

In this case, the test was simple for the judge to establish i.e. either SAS Petter to Petter the claimed amount as a consequence of the cession court order or between May to December 2004. If this happened, one would have needed the GOZ to provide factual evidence to the Court in support of the claim.

In this unusual matter, the GOZ approached the Court with no evidence to support the alleged diversion hence Willis J had no choice but to import his own version that the witness, Dr. Sanangura, had given two conflicting versions that the same amount R18 million was paid before 6 May 2004 and had confirmed as stated in paragraph 94 of the judgment that it was paid in line with the fraudulent claim by the GOZ.

The Willis J judgment was then used in Zimbabwe to expropriate the shareholding of the South African-based owner of the company that was used to sue him in SA.

President Ramaphosa has been at the forefront of a SADC initiative to remove sanctions against Zimbabwe. The concerns about the lack of respect for the rule of law by Western countries could be why President Ramaphosa intentionally chose to outsource his answer to a staff member in his office.

When asked this question:

The Chief Director of Communication in the Presidency responded as follows:

What kind of attention would permit President to know that all is not well in a justice system that promotes injustice?