What Is A Company? – Corporate Literacy, Company Dynamics, the Role of Political Actors and International Relations

Mutumwa Mawere, 08/01/2021

Yesterday, I had the opportunity to discuss at length with two members of C2C, Messrs Tendai Bob Mandhlazi and Brian Musekiwa, on the question that informed the creation of a WhatsApp group called – What Is A Company?

I also had extensive discussions with Mr Fred Mutanda, an experienced business actor in Africa with diversified interests, who was in the news for successfully interdicted the irregular and illegal appointment of directors by the Zimbabwean Minister of Industry, Hon Sekai Nzenza to the Caps Pharmaceuticals Private Limited (CAPS) board of directors.

One may ask why Honourable Nzenza would seek to assert a purported right in relation to a company without establishing the legal and factual basis for doing so, but illiteracy that is pervasive in our communities can never be discounted as a contributing factor.

When illiteracy on corporate matters is well established and manifests itself in the choices and actions of the few that often claim supremacy in terms of understanding on corporate matters, then it cannot be business as usual.

I also had conversations with Mr. Brian Manyati, also a member of C2C, on what is a company in relation to the SMM v Mawere and Mariemuthu (2012) matter.

It occurred to me that the subject of what is a company is often shrouded in mystery especially against a backdrop of the absence of masters who stand out as addresses of wisdom and better understanding on this question.

My interest in provoking a conversation under the umbrella of C2C on what is a company is primarily informed by my own experiences that may assist many others in recalibrating their understanding on this matter.

It is easy to conclude that shareholders are the owners of a company and as such its control and direction is vested in them.

However, others like me would conclude that although the shareholders may be the title holders of the shares issued by a company, they need not be the drivers of the car or a company.

The right to appoint directors, however, is vested in the shareholders who are sovereign and are entitled to appoint and dismiss directors at the pleasure.

However, when the right to dismiss directors of a company is divested and deprived by an act of state, the legal and constitutional implications of this decision may not be apparent to many.

Some may see this exercise as abstract and self-driven to vindicate a person like me but others like Dr Eric Soubeiga, a former World Bank official, who is a member of C2C and also a participant in this group, can see through the shenanigans.

The reason for any community initiative like this one is to raise awareness. It can be concluded from the above that a person like Dr Soubeiga, an experienced corporate actor has absorbed some take home insights of the extent of what he terms “travesty of justice until now.”

He may like many choose to do nothing but the mere fact that he knows something from the agency of this group, it means for those that doubt the need and urgency of associations like C2C, this may be the answer.

It is easy to build a new identity of victims and seek to use groups to advance personal interest and in so doing give skeptics and cynics a field in denigrating initiatives like this as overt attempts to abuse the public into sympathizing with the cause of a person like me.

I am glad that Dr Soubeiga has seen through the real victim in this drama – justice – and like Martin Luther King Jr observed the promise of independence was also a promisorry note that justice and fairness would define and shape the personality and character of independence.

The case of the use of public power to dismember a company and strip it of its identity is one classic example of presenting this promissory note to the bank of justice only to find that there are insufficient funds to make good on the promise.

Was justice done and seen to be done in relation to the affairs of SMM? This question is left to the person interested in the facts and not the consequences of learning about the facts.

It is significant that after following the thread, Dr Soubeiga; “There is so much to learn on what is / is not a company.”

He then asks: “Do you think the government in Zim will ever recognise that they were wrong in the way they repossessed SMM?” to which I responded as follows: “Have you noted that the SA judiciary played a positive role in giving life to the absurdity born in ZIMBABWE?’

This South Africa angle may elude people like Mmusi Maimane, who genuinely believe that the South African justice system delivers on the promise of justice yet prominent people like former President Zuma and Prophet Bushiri think otherwise.

Mr. Elvis Mugari, a participant in this group, shred this yesterday in this group: “I vehemently agree with Maimane. As long as the ANC government support the regime in Zimbabwe, South Africa will pay the ultimate price!”

It is clear from the above that there may be no shared understanding with him that if the role of the South African judiciary in undermining the rule of law in Zimbabwean by directly and constructively recognizing and enforcing laws that pose so grave a risk to constitutional morality in South Africa, then Mugari would know better that Maimane is playing politics with the people of Zimbabwe.

Mugari sought to provoke me to see some merit in the content and context of Maimane’s tweets as follows:

[1/7, 11:45 AM] Elvis Mugari: How are you Mukoma.Can we organise a zoom meeting to discuss Maimane’s submission?

[1/7, 11:48 AM] mdmawere1: What do you think Maimane is saying?

You recall that Maimane refused to take the Willis J judgment as a case study?

[1/7, 11:49 AM] Elvis Mugari: Yes I recall.

[1/7, 11:54 AM] Elvis Mugari: Maimane is saying, the crisis in Zimbabwe really deserves attention and stop-gap measures to be enacted and device a long lasting solution.

The problem of immigration between Zim and South Africa is perennial. SA and President Cyril Ramaphosa must call to order his counterpart in Zimbabwe

[1/7, 11:59 AM] mdmawere1: Do you think his take is on point? If so, what is his precise proposal?

Why was it not possible to device a long term solution for the DA to make him remain at the helm?

[1/7, 12:04 PM] Elvis Mugari: I vehemently agree with him and in his submission there is a point there and his proposal is that, South Africa as a neighbor and as a country who is at the receiving end of the crisis in Zimbabwe, SA must be involved meaningfully in solving the crisis of governance which are currently manifesting in Zimbabwe

[1/7, 12:04 PM] mdmawere1: Is this practical and what would be the starting point?

[1/7, 12:05 PM] Elvis Mugari: I would want us to separate internal party politics of the DA and the governance crisis manifesting in Zimbabwe

[1/7, 12:05 PM] mdmawere1: What would be the locus of SA to interfere in the domestic disputes of another state?

[1/7, 12:08 PM] Elvis Mugari: 1. SA is at the receiving end of the crisis in Zimbabwe (immigration crisis) 2. Cyril Ramaphosa is the current African Union Chairperson 3 .Humanity dictates that, you cannot connect a hosepipe to water your garden while your neighbor’s house is on fire

[1/7, 12:14 PM] Elvis Mugari: A burning Zimbabwe is a burning region

[1/7, 12:24 PM] Elvis Mugari: The Beitbridge border crisis demonstrates the depth of Zimbabwe’s socio-economic crisis. It epitomizes Mr Mnangagwa’s incompetence & the failure by the Govt to offer Zimbabweans jobs, economic stability & a decent life.

[1/7, 12:33 PM] mdmawere1: Do you agree that SA is a sovereign nation state with its own challenges?

Do you agree that it cannot in terms of the community of nations unilaterally and arbitrarily interfere in another state’s affairs? The AU like SADC is a supranational body with no power to confer on any Chairperson to make any decisions on his own. Humanity does not give locus to interfere.’

I am sure that one would be compelled to ask why a person like Maimane would seek to interfere with the affairs of Zimbabwe when the SA judiciary aided and abated the Zimbabwean government in stealing a company and using the stolen company to successfully sue the victim in South Africa.

President Mnangagwa in June 2018 visited SMM’s ghost mining operations and the Herald, a national newspaper that is controlled by the government reported as follows:

“SMM and Gaths Mine in Mashava was shut down in 2004 following Government’s problems with owner Mutumwa Mawere. It has gone through several litigation cases since as Mawere tries to regain ownership of his empire. President Mnangagwa said the mines were re-opened after Government won 22 out of 23 litigation cases. Only one case is still pending.’

The link to the article is: https://businesstimes.co.zw/smm-to-inject-75-mln-to-bring-asbestos-production-to-full-capacity/

It is important to highlight that the Willis Judgment is one of the judgments that President Mnangagwa is genuinely proud of.

How many people like Maimane have the audacity to name and shame the judges who participated in recognizing the rights of a thief and rewarding him with a judgment that is now 9 years old.

The facts of what Dr Soubeiga calls a travesty of justice were furnished to Maimane but he refused, neglected and failed to do anything because the victim was black skinned and not a member of the MDC.

I said to Dr Soubeiga that: “If this link is accepted, do you agree that the actors in the Zim govt feel elated by this vindication?” in form of SA judgments that openly expose the complicity of the SA judiciary.

Eric Soubeiga aptly responded as follows: “Of course, the Zim gvt would feel elated by this absurdity. They get a 3rd jurisdiction to tell them that what they did with SMM is quite alright. Unbelievable!”