The ZEP program was launched in 2010 to help Zimbabweans living in South Africa gain legal status. The program permitted Zimbabwean nationals who had unlawfully entered the country or overstayed their visas to obtain work permits and legitimately settle in the country. The program has been extended thrice, with the most recent extension expiring in December 2021.

The HSF and CoRMSA warn that ending the ZEP program will be disastrous for the thousands of Zimbabwean citizens who have been living in South Africa under the scheme. They further claim that the administration made its decision without properly consulting impacted stakeholders and without considering the potential impact on the labour market and social cohesion.

The All Truck Drivers Forum and Allied South Africa, on the other hand, claim that the ZEP program has been detrimental to South African workers, particularly those in the trucking industry, resulting in unfair competition and job losses. Another intervening party, Operation Dudula, has expressed similar concerns.

The conclusion of this case will have far-reaching repercussions for South Africa’s immigration policies, job market, and social cohesion. The case is still underway, and the court’s verdict is awaited with bated breath.

According to the HSF and CoRMSA, the end of the ZEP regime might have disastrous effects on thousands of Zimbabwean nationals working and living in South Africa. They argue that the judgment violates the rights of these people, many of whom have worked and contributed to the South African economy for many years.

Because of its direct and substantial interest in the result of the case, the All Truck Drivers Forum and Allied South Africa, a civil society organization representing truck drivers, were given intervention status. According to the group, the ZEP regime has had a significant influence on the local truck driving business, with Zimbabweans allegedly snatching jobs away from South African truck drivers.

In contrast, the court refused intervention status to another organization seeking to join the case, Operation Dudula. The court determined that Operation Dudula, a civil rights campaign claiming to combat crime and criminality, lacked a direct and substantial interest in the main application since its allegations were unfounded.

This high-stakes case allows the court to assess the broader ramifications of immigration rules on South African society, notably in terms of employment and the rights of both domestic and international workers. The participation of the Helen Suzman Foundation, the Coalition for Refugees and Migrants in South Africa, the All Truck Drivers Forum and Allied South Africa, as well as government responders, demonstrates the wide range of interests and viewpoints at stake in this debate.

As the case progresses, the court will need to carefully weigh the interests of all parties concerned, ensuring that both South African truck drivers and Zimbabwean nationals have their rights considered and protected. The conclusion of this case has the potential to influence not only the lives of thousands of Zimbabweans and South African truck drivers but also the future of South African immigration policy.

Many stakeholders, including labour unions, human rights organizations, and immigration experts, are keeping a careful eye on the result of this case. The ruling of the court could set a legal precedent for future immigration cases and influence how the South African government approaches immigration policy and enforcement.

In addition to the primary issues of the ZEP regime and its influence on the truck driving sector, the case has raised larger concerns regarding immigrants’ rights and obligations in South Africa. Some claim that the government must protect the rights of all individuals inside its boundaries, regardless of nationality, while others contend that the interests and concerns of South African nationals should take precedence.

While the primary application continues, the court will be entrusted with reviewing the facts and arguments offered by all parties concerned. The HSF and CoRMSA will need to explain the potential negative repercussions of ending the ZEP regime, including the potential infringement of the rights of Zimbabwean nationals living in South Africa.

The All Truck Drivers Forum and Allied South Africa, on the other hand, will need to substantiate their assertions that the ZEP regime has badly impacted the local truck-driving business and give a persuasive case for why the court should accept their views.

Those interested in the outcome of this case will be waiting for the Gauteng High Court’s judgement in the coming months. The verdict may not only define the future of the ZEP system and its ramifications for thousands of Zimbabwean nationals, but it may also serve as a model for how South Africa approaches the complicated and frequently contentious issue of immigration policy and enforcement.

Regardless of the court’s final verdict, the case serves as a timely reminder of the importance of continued conversation and collaboration between the government, civil society, and affected communities when dealing with immigration-related issues. It is believed that by engaging in open and honest debates, South Africa will be able to move toward a more inclusive and fair approach to immigration policy that balances the interests and rights of all individuals concerned.

The general public and other stakeholders will keenly monitor the proceedings as they unfold in the coming months since the decision might have a far-reaching impact on South Africa’s immigration policy and the lives of thousands of Zimbabwean citizens living and working in the country.

The role of the intervening parties, All Truck Drivers Forum and Allied South Africa, as well as Operation Dudula, underlines the complexities of South African immigration issues and the necessity for a balanced and nuanced response that takes into account the concerns of various stakeholders. While Operation Dudula’s intervention was ultimately unsuccessful, it highlights the need of addressing public concerns about crime and the perceived impact of immigration on local communities.

The court’s final decision on this matter will not only determine the future of the ZEP regime but will also send a strong message about the South African government’s approach to immigration policy and the balance between protecting foreign nationals’ rights and prioritizing the needs of its citizens.

South Africa must develop constructive communication and cooperation among government officials, civil society organizations, and affected communities as it deals with this complicated issue. Stakeholders can build a more inclusive and equitable immigration policy that upholds the rights of all individuals while addressing the concerns and needs of South African citizens by working together and engaging in open and honest dialogues.

Finally, the case involving the Helen Suzman Foundation, the Consortium for Refugees and Migrants in South Africa, the Minister of Home Affairs, the Director General of Home Affairs, the All Truck Drivers Forum and Allied South Africa, and Operation Dudula serves as a vital reminder of the importance of addressing immigration issues fairly and balanced. The conclusion of this case will not only affect the lives of thousands of Zimbabweans in South Africa, but it will also serve as a precedent for future immigration cases and policy decisions in the country.

#ZEPprogram #SouthAfrica #Zimbabweans #ImmigrationPolicy #LegalBattle #TruckDrivers #SocialCohesion #JobMarket #HSF #CoRMSA #OperationDudula #ImmigrantRights

Below is an account of Tichaona Mupasiri’s record of what transpired in the Constitutional Court of Zimbabwe (CCZ) following his application that was issued on 17 December 2021 in terms of s167(2)(d) as read with s167(3) of the 2013 Constitution of Zimbabwe.

Following the withdrawal of Mawere as the Second Applicant at the hearing of 23 March 2022, the Constitutional Court had set down the matter for hearing today.

Mr. Mupasiri appeared in person and notwithstanding Mupasiri’s challenge of authority in relation to the President’s opposition to his application, it would appear that this challenge has been determined outside the four corners of the Court.

The President was represented today by DMH Attorneys. In attendance on behalf of the two Respondents i.e., President Mnangagwa and Manikai that Mupasiri cited in his application, were Mr. Kondongwe and Mr. Canaan Dube.

Mr. Dube remarked to Mupasiri as follows: “What frightened you that you withdrew?” Initially, Mr. Dube was not aware that Mr. Mupasiri was already in Court and was only informed by Kondongwe that he was in attendance.

Mr. Kondongwe’s primary preoccupation was on wasted costs as he maintained that Mupasiri had wasted the time of the court.

Mr. Mupasiri said: “What is striking in the matter was that on 24 December 2021 when President Mnangagwa’s opposing affidavit was filed by DMH on his behalf, he had not been served with my application.

This raised a red flag for me as I had not expected him to have received my application through the back door. At the time, I was naive to expect that the President in terms of the constitution had no business interfering with the Attorney General’s mandate.

In terms of s114 of the Constitution, it is the AG who is vested with the duty to represent the President in all litigation matters. This position was subsequently confirmed by the President in his opposing affidavit to Mawere’s application under Case Number 27/22 that is pending before this apex court.

When the hearing started, as the Applicant for the withdrawal of my application that was opposed by DMH on behalf of both the President and Manikai, was that on 25 January 2022, I did launch an application challenging the authority of DMH to act on behalf of the President.

What surprised me is that this application was dealt with by an anonymous judge who directed that the issues raised therein were going to be dealt with at the hearing that was set down for hearing on 9 March 2022.

I was shocked that a Presiding Judge would make a ruling without the parties submitting their respective positions to the Court.

This was not suprising to me because I kind of expected that the Court would expose its partiality but had no idea that it would be done overtly.

I already knew that my application was already doomed to fail. However, I did not stop there. I then asked for the reasons from the anonymous judge.

He delayed in responding to the request for reasons and this exposed that I had exposed the complicity of the court in treating the President’s failure and refusal to abide by the constitutional limitations to using the AG as his legal representative.

On the 9th of March 2022 as expected, no reasons were provided and the matter was postponed to 23 March 2022.

By 23 March 2022, Mr. Mawere’s application for leave to intervene had been granted by the court and now we were 2 Applicants.

It was during these proceedings that I got the confirmation I needed that the President had knowingly and intentionally outsourced his defence to DMH without the knowledge and involvement of the AG.

Armed with this knowledge, I already knew where the matter was heading. And this led me to introspect and I had to make a decision on whether it was worth my while to prosecute a matter before a tribunal that had already determined the outcome of the matter.

If anyone is interested in this story of justice without accountability, please watch the space.”

Below is Mupasiri’s write up:

Good afternoon ladies and gentlemen.

My name is Tichaona Mupasiri.

I was in court today for the hearing of the matter CCZ34/21 which was filed at the Constitutional Court of Zimbabwe in terms of s167(2)(d) as read with s167(3) of Zimbabwe 2013 constitution.

What triggered this application was the averments made by Mr. Manikai in a chat with Mr. Fred Mutanda @⁨Sekuru Mutanda FOSMM SA⁩ which made scandalous allegations that the demise of SMM was a result of what he termed A MAJOR POLITICAL FALL OUT between Mutumwa Dziva Mawere @⁨Mutumwa Dziva Mawere⁩ where Mawere is alleged to have chosen to associate with the less powerful Teurai Mujuru sidelining his supposed Godfather, President ED Mnangagwa.

Manikai sits on the Presidential Advisory Council under POLAD and is also the President’s personal lawyer.

After the launching of the CCZ34/21 matter, the Respondents, the President of Zimbabwe, and Manikai as 1st and 2nd Respondent respectively filed their opposition on the 24th of December 2021.

It made me question the authority to represent the President, by a private law firm, DMH, and implicated party, without the authority of the Attorney General’s office.

On the 27th of December 2021, I wrote to DMH asking whether the first was officially authorized to represent the president as s114 is clear that it is the AG who has the budget for litigation for the president.

That letter fell into junky hands; DMH refused, failed, and neglected to give a response to my writing.

Fast forward to the 25th of January 2022, I issued an interlocutory application to the apex court whose issue was on the authority question, whether the first DMH was indeed authorized to represent the first citizen in the matter of utmost importance that was before the court.

It is interesting to note that the “unauthorized” opposition of December 24 2021 invoked the name of Mutumwa Mawere @⁨Mutumwa Dziva Mawere⁩ who then was incensed to apply for the leave of court to intervene in the matter as he intended to set the record straight on issues his name was raised by the respondents in their opposition.

That later saw the court granting leave for Mawere to intervene and become the 2nd applicant in the main matter.

This matter saw countless court appearances in February, March, and this month May 2022.

As it is a known legal fact that a case falls or stands on its founding papers, Mawere as the 2nd applicant was not allowed to depose to a supplementary affidavit to the founding papers.

On a heated court hearing on March 23rd, 2022, Mawere indicated his intention to drop off what he called the Mupasiri bus to launch a fresh application which he did an issue on the 6th of April 2022 under case number CCZ27/22.

On the 28th of April 2022, through a notice of withdrawal, in writing and attaching an affidavit, citing reasons for the action, Mawere proposed a withdrawal as 2nd applicant.

After reading his notice of withdrawal and also noting that on my matter the authority question was squashed and suffocated within the four walls of the court and that there was no proper opposition before the court, in the interests of justice I was left with no option but to withdraw too; which I did on the 29th of April 2022.

The opposition to my main application was not properly before the courts for two major reasons:
i) authority of DMH to represent the president
ii) The first respondent opposed an application that was never served to him/the AG as later found from the Sheriff’s Return of Service record.

Today, the 11 May 2022, 0900hrs, the CJ Malaba-led court was set to determine whether the apex court has jurisdiction to hear this matter.

However, the matter was not heard, and instead, the court’s efforts were on the withdrawal notice.

The withdrawal notice was opposed in the oral court proceedings by the Respondent’s legal counsel who wanted the matter to proceed and be heard on merits.

The young lawyer was reminded by Garwe JCC that he had almost two weeks, from the 28th and 29th of April 2022 to oppose the withdrawal but he chose to ignore which to court meant consent.

He tried in vain to persuade the court but he could not substantiate his opposition despite having moral support from one of DMH directors, Mr. Dube.

Kondongwe did not fully understand the provisions of Rule 53 of the Constitutional Court rules so he ended up waffling, registering his regret to the court for not filing an opposition.

The respondents through their lawyer asked the court for costs on a higher/punitive scale to be imposed on the applicants.

After an hour’s adjournment by the court, a judgment was handed down that:

1. The withdrawal by applicants is granted.
2. CCZ34/21 and all sideline matters ancillary to it are struck off the roll.
3. The applicants to pay the costs on an ordinary scale as compared to the sought higher scale.

The question remains, is it legally binding to pay costs on a matter that is not properly before the courts considering that the authority question is still hanging?

I would love to hear from you and I can be reached at http://wa.me/263732231900 or email [email protected]

Or call +263719231888

BACKGROUND

Friends of Shabanie and Mashava Mines Trust (FOSMM), is organized as a discretionary trust and operates in terms of the laws of Zimbabwe.

It was established to act as a vehicle for connecting, equipping and inspiring members and
raising awareness about the importance of the rule of law in shaping and defining the
character of a value-centric society.

SMM Holdings Private Limited (SMM) was created as a private company in 1917. In March
1996, the company’s sole parent, SMM Holdings Limited (SMMH), a company duly
incorporate in terms of the laws of the United Kingdom (UK), that was in turn owned by T &
N Plc, a company registered and operating in terms of the laws of the UK, was acquired by
Africa Resources Limited (ARL).

ARL, a BVI registered company was wholly owned by Mr. Mutumwa Mawere, a
Zimbabwean-born South African resident and citizen since 2002

CESSION COURT ORDER

In December 2003, Dr. Gideon Gono was appointed as the Governor of the Reserve Bank of Zimbabwe (RBZ).

Following his appointment, he proceeded to target SMM and its related companies comprising 26 juristic entities employing more than 20,000 employees.

The initial cause of attack was foreign exchange related. Under Gono’s instruction, the regime of forex retention whereby 75% of foreign exchange earned by SMM could be
retained for its own use was changed and reduced to an effective 25%.

This in simple terms meant that if SMM received $1 million from export sales, it was
required to sell $750K to the market at the official exchange rate and could only use $250K
to meet its important requirements.

The difference between the official and black-market rates was wide and significant allowing
for people in the RBZ selling the exported forex to special friends who would then sell this
scarce commodity through the black market and pocketing the windfall profits.

Between January and March 30, 2004, SMM was marketing its own asbestos products. With
effect from 1 April 2004, SMM’s exemption to market asbestos was terminated abruptly and
the Minerals Marketing Corporation of Zimbabwe Limited (MMCZ).

One of SAS’ agents, Southern Asbestos Sales Pty Limited (SAS), a company incorporated and
operating in terms of the SA laws, was responsible for invoicing SMM’s customers and
collecting funds from the sales that were then remitted to SMM in Zimbabwe.

As a direct consequence of the RBZ’s targeting, SMM was unable to use its forex to pay its
foreign creditors of which Petter Trading Pty Limited (Petter), a company incorporated and
operating in terms of the laws of SA, was the largest.

Petter approached the SA courts to obtain an order to allow it to collect from SAS what was
due to it but could no longer be paid by SMM.

The order was granted on 6 May 2004 per Van Oosten J.

EXRADITION OF MAWERE

On 17 May, 2004, a warrant of arrest was issued against Mr. Mawere, who was neither a
resident of Zimbabwe nor a director of SMM.It is worth highlighting that the exchange control regulations only apply to the residents of
Zimbabwe.

As set out below, the warrant was issued in terms of s5(1)(b) of the Extradition Act 67 of
1962.

The charges against Mr. Mawere were of fraud, alternatively contravention of the Exchange
Control Act of Zimbabwe.

What is strange in terms of this warrant is that it is stated that: “IT HAS BEEN ALLEGED THAT
HE (MAWERE) HAD COMMITTED THE SAID OFFENCES IN THE REPUBLIC OF SOUTH AFRICA
AND THEREFORE HE IS A PERSON LIABLE TO BE SURRENDED TO ZIMBABWE.”

Professor Tichaona Mupasiri said: “As the Director of Public Policy at FOSMM, I had never
looked at this warrant to truly appreciate the complicity of Interpol and South African laws
enforcement officers in giving Zimbabwe title and jurisdiction to prosecute a South African
citizen in Zimbabwe for crimes allegedly committed outside its border. It is mind boggling to
learn that this fatally defective warrant was recognized and enforced in South Africa.”

It is common cause that Mr. Mawere was arrested in South Africa based on an affidavit in support of the request by the Zimbabwean authorities to extradite him. The affidavit is
below:

It is clear from the above that the deponent accepts that Mr. Mawere was wanted in Zimbabwe for fraud allegedly committed in South Africa. It is not in dispute that the
Zimbabwean Exchange Control Act applies to facts and circumstances that relate to the affairs of the Republic of Zimbabwe.

On 22 May, 2004, which was a Sunday, Patrick Chinamasa, who was the Minister of Justice, Legal and Parliamentary Affairs at the time is alleged to have caused the letter below to be written and signed by the then Director of Public Prosecutions, Mr. Joseph Musakwa.

It is believed that Mr. Musakwa was rewarded the following year when Chinamasa recommended him for appointment as a judge.

On 3 June 2015, he was promoted to be in the Supreme Court of Appeal as a judge. Mr. Musakwa in his letter to the SA Director of Prosecutions knowingly and intentionally
falsely represented that Mr. Mawere was resident at #46 Lawley Avenue, Lincoln Green, Belvedere for the purpose of inducing South African law enforcement officer to process a
fatally defective and criminal warrant based on facts that he knew did not exist.

It was true and fact that the alleged crime occurred in SA yet here Musakwa acted criminally by inserting that the Zimbabwean address was the pace Mawere used when in Zimbabwe when he knew this was false and fraudulent.

This misrepresentation by Musakwa went unnoticed by the SA and Interpol authorities because it was couched in a manner that represented Mawere as a Zimbabwean resident
who was subject to the Exchange Controls of Zimbabwe.

Mr. Musekwa further falsely misrepresented that Mawere was wanted for prosecution in Zimbabwe on charges of fraud alternatively the Exchange Control Act when he was fixed
with the knowledge that the allegations related to a court order granted in SA.

The Zimbabwean fraudulent warrant of arrest was issued by the then Provincial Magistrate Judith Tsamba on 17 May 2004 in Harare.

Who is Judith Tsamba and what became of her? She later became the Company Secretary for ZESA but it is significant that two months before she did her hatchet job in relation to
Mawere, this is what happened:

On Sunday, 22 May 2021, Interpol was roped into the abuse of public power and the letter below was written to by Interpol Zimbabwe to Interpol South Africa requesting that Mr.
Mawere be arrested in South Africa to answer to allegations of exchange control violations purportedly committed in South Africa.

What is worth highlighting is that the request was made for the immediate arrest of Mr. Mawere and the passport used in this letter was his Zimbabwean passport to create the
impression that he was a resident of Zimbabwe when in truth and fact, he was a nonresident of Zimbabwe making the allegations of exchange control regulations inappropriate
for the facts alleged.

On 29 June 2004, the extradition application was dismissed as set out in this article https://www.iol.co.za/news/south-africa/sa-court-refuses-to-keep-zim-tycoon-in-jail216105.Mawere’s lawyer, Michael Salomon, of Salomon-Lipshitz, through Advocate Lawrence Hodes, had argued that the Zimbabwean approach was contrary to South Africa’s principles
of justice.

Hodes said in South Africa it was unconstitutional to arrest for the purposes of investigating.
“You first complete investigations and make out a proper case before arresting,” Hodes had argued.

By their own admission, the Zimbabwean authorities were not ready to proceed with the case and it would be unfair to keep Mawere on remand, the magistrate said.

The decision means Mawere gets back his passport and R50 000 bail money. “All charges against you are dropped, you can go,” the magistrate told him.

It is common cause that after the failure to extradite Mawere, Chinamasa on 9 July 2004, issued specification order against Mawere in terms of the Prevention of Corruption Act using
the same facts and circumstances of the extradition application alleging that Mawere had committed offences in SA that were punishable in Zimbabwe.On 13 August 2004, Chinamasa appointed Assistant Commissioner Mangoma to investigate
Mawere.

On 26 August, 2004, SMM and related companies deemed to be under Mawere were specified.

Set out below is Chinamasa’s version of the facts and circumstances leading to the extrajudicial divestment of the control and direction of SMM on 6 September 2004.

The control and management of SMM was placed under the control of Afaras Mtausi Gwaradzimba by Chinamasa in his capacity as the Minister of Justice.

THE MANIKAI FACTOR IN FORMULATING AND PROSECUTING THE RECONSTRUCTION ACT

On paragraph 5.7 of Chinamasa’s affidavit to confirm the reconstruction order that he had issued in relation to SMM, he states that the Reconstruction Regulations that were issued in terms of Statutory Instrument 187 of 2004, there was no provision for any judicial involvement in relation to the reconstruction of SMM.

Manikai was purportedly appointed by Chinamasa to act on behalf of the government of Zimbabwe.

The Attorney General’s Office Act provides as follows:

It is true and fact that all the government work pertaining to the prosecution of the face has been exclusively outsourced to Manikai.

It is alleged that the regulations that preceded the Act were not drafted and processed by
the Attorney General’s office.

Manikai played a key role in the creation of the Reconstruction Regulations.

This screenshot gives the public a glimpse of a conspiracy to subvert rules, laws and norms
that play a vital role in underpinning a democratic constitutional order.It provides a concrete narrative that Manikai was not working alone but was part of an
orchestrated team of nameless and faceless citizens with the exception of President
Mnangagwa that he mentions are the trophy of the conspiracy to be delivered to statehouse
by any means necessary.

It helps people connect the rationale and thinking behind the coup and, therefore, it is not
surprising that his narrative speaks to the actual events that preceded the decision to use
public power to destroy anything that stood in their way to enable President Mnangagwa
succeed the late President Mugabe.

The fact that Manikai could openly connect the succession intent of 2004 with the
reconstruction laws sends a chilling message of the threat to democracy he personally poses
and more significantly that absent this important revelation the distortions that has
characterized the SMM matter would go unnoticed.

The fact that the President was part of this naked onslaught on the constitution that he took
an oath to protect and promote leads to one inescapable conclusion of whether he is fit for
purpose.

When he assumed office and knowing the criminal abuse of public power to divest and
deprive of rights and freedoms in relation to SMM, he would have taken steps to distance
himself from the serious fraud on the Zimbabwean people.

The fact that a big spin was at play in relation to the pathway of President Mnangagwa to
the statehouse must worry all citizens who are vested with the duty to protect the rule of
law.

Manikai, a non-state actor was clearly a centra player but could not have committed this
fraud without the knowledge and active involvement of people who were the de facto
drivers of public policy during the Mugabe era.

Manikai continues to be close to the President and this alone shows that President
Mnangagwa sees no evil in the fact that the institution of the Presidency is tainted with
fraud and corruption.

The importance of Manikai’s admissions to public policy makes it impossible to ignore this
expose and it seamlessly provides a link with the genesis of the coup of 2017 against the
ZANU-PF constitution.

The SMM story shows that the people who were central in directing the reconstruction
affairs embarked on a deliberate campaign to undermine the rule of law.

They used corrupt means to divest and deprive the shareholders and directors of the control
and management of the company and this fact alone must worry any democratic and the
narrative of the ZANU-PF ascendancy demonstrates how far Manikai as a lawyer regards
contemptuously the oath he personally took to uphold.

Organizing the reconstruction affair was in itself a criminal act and the participation of
Manikai in persecuting and prosecuting this fraud disqualifies him from practicing law and
asserting any privilege as a lawyer.

Clearly Manikai is fixed with the knowledge of what factors at play in this fraud and by
sharing his narrative he automatically waived any right to privacy and confidentiality.

It is trite that democracy depends on public trust and the integrity of the people privileged
to possess and exercise public power but the facts of the reconstruction and the coup of
2017 shows the audacity of the actors in the drama and confirms that Manikai and his
undisclosed conspirators have absolutely no regard for any democratic and rule of law
norms and values.

Manikai’s narrative demonstrates that the truth was a real victim and he knew that the
foundation of the reconstruction laws was fraudulent and solely intended to fight Mawere
on political grounds.

The disinformation that characterized the reconstruction of SMM was classic and is similar
to the disinformation that was used in relation to the 2017 coup.

The Zimbabwean public was falsely fed the spin that:
a. Mawere had externalized substantial funds from Zimbabwe.
b. Mawere had fled the country because the allegations of fraud against him were
damning.
c. Mawere was a resident of Zimbabwe.
d. The alleged fraud was supported by facts known to exist in Zimbabwe.
e. Because of the alleged externalization, SMM and related companies were forced to seek
government financial assistance hence the construction of state-indebtedness.
f. The use of Presidential Powers was the best remedy to deal with the situation.
g. Manikai and Gwaradzimba were the best people to prosecute the alleged fraud.
h. It was in the interests of justice and public policy for asset forfeiture to be invoked as a
remedy using public power.

This fraud was committed on the people of Zimbabwe and on the institutions of parliament
and the judiciary with Manikai playing a pivotal role in the prosecution.

Behind the curtain of reconstruction was a criminal syndicate that President Mnangagwa
was an integral part of where the future of so many was stolen with impunity.

Manikai through his astonishing admissions has already thrown President Mnangagwa under
the bus.

Manikai has exposed that the ideology of coups had deep roots.

That the support of the judiciary was given in this onslaught and the fact that they have not
been made accountable says a lot about the strength of democracy and the culture of the
rule of law in Zimbabwe.

The reconstruction affair was not the end of the ideology of coups but the beginning of
coups.

It is important to stitch the facts of SMM reconstruction and its actors to the 2017 actors.

The authors of the coup strategy stood to benefit and are clearly benefiting from the fruits
of their criminal conduct.

Manikai is not only close to President Mnangagwa but is a central player in using the law as a
weapon to annihilate democracy and the rule of law.

Manikai gives a insightful portrait of what happened to justify the use of public power in
relation to the affairs of SMM and sticks him in the same den with President Mnangagwa.

The facts of SMM clearly expose the role he has played in using public power to attack the
rule of law using his profession as a weapon.

The right to appoint and remove directors of SMM just like the power of citizens to elect a
President was divested from them using extrajudicial means.

The rule of law compels Manikai to assist in the search for the truth and in asserting the
supremacy of the constitution which places no one above it.

Zimbabweans in general are in the dark and an explanation is needed as to what the
President knew and didn’t know about the events and facts of the reconstruction affair in as
much as the facts of the coup of 2017 that Manikai is defending in an open court.

The rule of law is better protected when transparency is the order of the day.

MANIKAI – THE ARCHITECT AND ENFORCER OF INJUSTICE IN RELATION TO SMM

Manikai’s relationship with SMM needs to be unpacked to test if he suffers from any conflict
of interest.It is true and fact that Manikai, who was working for the firm, Gill, Godlonton and Gerrans
(GGG), acted for Africa Resources Limited (ARL), the company that acquired the entire
shareholding of SMM Holdings Limited (SMMH), the sole parent of SMM.

SMMH is a UK registered company.

At the time SMM was placed under reconstruction Manikai and his firm, Dube Manikai and
Hwacha, had a relationship of attorney to client one.

Manikai in his admissions referred to above, states that a major fallout occurred with
Mawere and this resulted in him taking sides with President Mnangagwa.

What is known is the following:
a. Manikai became Chinamasa’s lawyer in the prosecution of the reconstruction affair.
b. At all material times, Chinamasa was the Minister of Justice and not the Attorney
General.
c. The Attorney General has to date not been involved directly or indirectly in the
prosecution of the reconstruction in relation to SMM.
d. Manikai has exclusively handled all legal matters including using his firm’s address as the
proxy address of the AG.
e. No records exist in the public domain showing the contractual nexus between DMH and
the AG in relation to the SMM affair.
f. Manikai from the onset became the sole legal advisor to the Administrator of SMM,
Gwaradzimba, who was appointed by Chinamasa.
g. No facts exist as to when Manikai was appointed to act for SMM while also acting
purportedly for the government of Zimbabwe.
h. The distinction between the GOZ and Chinamasa in relation to SMM’s affairs never
existed as the facts show that only Chinamasa had sole control of the affairs of SMM.
i. Manikai knew the facts and circumstances of informing the decision to create a law or
regulations whose sole aim was to divest the shareholders and directors of the control
and direction of SMM.
j. The law in question was founded on the existence of a new identity of a company solely
on account of alleged state indebtedness.
k. That a company identified as state indebted could be subjected to attack outside the
provisions of the Companies Act.
l. That the Minister of Justice would unilaterally and arbitrarily be vested with the power
to issue a limiting order without the involvement of the courts.
m. In relation to SMM, there was no provision for the court to be involved in determining
the existence of a debtor to creditor relationship with the state, the quantum of the
alleged indebtedness and the whether the alleged debt was due and payable.
n. Manikai would have known as an officer of court that a law that offends the separation
of powers and equality before the law was incurably defective and as such was no law at
all yet he brazenly proceeded to recognize and enforce it.
o. Manikai has been the permanent feature of this affairs since 2004 confirming his
conviction that this law though it poses so grave a risk to the rule of law, is
constitutional.

MANIKAI IN RELATION TO TAP – ZAMBIA

Manikai has played the role of a lawyer to the Administrator of SMM, a creature of statute,
whose authority to be related to SMM as its representative was derived from the regulations
that preceded an Act of Parliament.In this position, SMM was ostensibly his client in Zimbabwe, and as such as a legal
practitioner, his profession would have limited him to act for the GOZ, a party that had
created a law to alienate SMM’s shareholders and directors without any due process of the
law.

Notwithstanding, Manikai saw no constitutional violation in his conduct and still sees not
conflict at all.

Below is a letter dated 30 January 2006 and copied to Manikai:

It is evident from the subject matter that the author, a creature of Zimbabwean regulations
and laws, that there was no doubt in his mind that he possessed legal and constitutional title
to write the letter.

The subject matter was in relation to the reconstruction of TAP, a Zambian juristic entity,
and the dissolution of the board of a Zambian company.

It is significant that the then Chairman of TAP was the recipient of this bizarre letter.

The Chairman was a director of TAP having been appointed by the shareholders of the
company.

In terms of the Zambian Companies Act, the title and authority to appoint and remove
directors is vested with the company’s shareholders.

Gwaradzimba is a Chartered Accountant and not some corporate pedestrian.

Below is an extract from the letter referred to above:

It can not be noted from the extract above, that Gwaradzimba knew that the only nexus to
TAP was by virtue of the regulations promulgated by President Mugabe and in terms of
international law, the application of such regulations was confined to the territory and
jurisdiction of Zimbabwe yet he brazenly asserted that TAP located outside Zimbabwe was
bound by this law and as such was deemed to under reconstruction and he derived his title
to control and manage TAP.

Astonishingly, he asserts that TAP is an associate of SMM simply based on his interpretation
of Zimbabwean regulations and with no regard to the territorial integrity of Zambia.

He proceeded to nullify the resolutions adopted by the shareholders of TAP to dissolve the
company’s directors and appoint new directors.

Gwaradzimba and Manikai are known as belonging to President Mnangagwa’s inner circle.
Both are professionals with legal and corporate governance knowledge to know better that
the right to appoint and remove directors falls within the ambit of bill of rights that are
entrenched in the constitution.

Notwithstanding, set our below is what Gwaradzimba stated in the letter:

He asserts a right that he does not possess and uses a Zimbabwean law to attack the rule of
law in Zambia. He states that he is required in terms of Zimbabwean regulations to assume
the control and management of SMM.

He then confers on himself what he refers to as plenary powers and authority over TAP, a
Zambian juristic entity.

From 30 January 2006, the board of TAP was hijacked using a Zimbabwean regulation.

Below is an extract of the same letter that shows that Manikai and Mundashi were both
copied this letter and were or must have been familiar with its contents and their legal and
constitutional implications.

It is trite that a lawyer has a responsibility to the constitution and as such it was incumbent
upon Manikai and Mundashi to be alive to the criminality in the construction and legality of
the proposition that a Zimbabwean law or regulation could apply extra-territorially in
relation to the affairs of TAP.

Lawyers are public citizens and as such cannot escape being accountable for the actions
especially if the actions offend the constitution and limitations imposed on all citizens that
are inherent in it.

Clearly in giving life to a scheme that resulted in him personally benefiting as a director of a
company that fell outside the jurisdiction of Zimbabwe, Manikai knew that his conduct was
inimical to the rule of law.

Ordinarily, one would expect lawyers to understand and define their role as constructors of
constitutional meaning but this case exposes the criminality that is now so pervasive in the
legal profession that allowed this travesty of justice to take place and money to be stolen to
the prejudice of TAP.

The constitution compels lawyers to practice professional responsibility that requires
lawyers to be subject to the rule of law and their responsibility to go beyond client
representations.

As a consequence of this fraud, Manikai became a fiduciary of TAP and as such fully
associated himself with the crime perpetrated against TAP.