Tapuwa Chitambo, 16/01/2021
While commenting on an article published by iniAfricaNews, entitled: “Is South Africa an Enabler of Zimbabwe’s Decay, Dr. Shumba said that South Africa is not an innocent party in the Zimbabwean problem: https://iniafrica.com/index.php/2021/01/13/is-south-africa-an-enabler-of-zimbabwes-decay/
Dr Shumba further expressed concern on approaches adopted when it comes to the upholding of the rule of law in South Africa by highlighting that there is a preposterous lack of constitutional knowledge coupled with a deeply corrupted legal and police system.
He also touched on the criminal charges that he laid against South Africa’s Judge Willis, Advocate Christo Bothma, ENS attorney Kirsty Simpson, and the entire chain of actors who were involved in this travesty of justice in the SMM case.
The questionable handling of legal matters especially on the corporate landscape between the two countries has greatly contributed to the worsening of the economic situation in Zimbabwe.
Zimbabwe has had run-ins with other countries regarding its handling of human and property rights issues.
It has been under sanctions since 2001 and the fact that sanctions were not lifted after the coup of November 2017 that saw Mugabe being unceremoniously unseated by his comrades, exposes that Western intelligence on Zimbabwean affairs is on point that the people who authorized tyranny under Mugabe are still the sheriffs.
A case in point is the SMM issue where this Zimbabwean company was captured by the use of a decree promulgated in the name of Mugabe September 2004 and yet the law at play was authored by Chinamasa and Mnangagwa specifically to divest and deprive shareholders and directors of the control and management of the company.
In an unprecedented move, Mnangagwa and crew appointed July Moyo, the Minister of Local Government, a relative of Afaras Mtausi Gwaradzimba, the SMM Administrator under the Recon Act, to assume the control and direction of the company.
Using the authority acquired through an act of state, SMM was then given audience with ease by the South African judiciary.
In the above instance, the Judge Mojapelo-led High Court was the forum used to prosecute a number of Court cases in the name of the company and yet behind the scenes, it was Mnangagwa with his coup partner, Chinamasa as the running dog.
The following is a thread of a conversation that I had Dr Shumba in relation to the content and context of the above mentioned article:
“[1/16, 11:00 AM] Tapuwa Chitambo: [1/16, 9:54 AM] Gandanga: How are you Doc. Your thoughts on this?
[1/16, 10:37 AM] Daniel Shumba: I agree. SA has and continues to be complicit and seems to have a deeply corrupted legal and police system. They particularly activate their moral standing only when the victim is white. A black man’s loss is considered collateral damage.
The State’s intervention processes become so expensive and laborious to follow through on such matters. Foreign nations are always handed the short end of the stick (unless you’re connected at the top).
A lack of constitutional knowledge across the system is preposterous. Additionally, the crime of perjury is grossly unstated, and yet it is the single most cause and reason for the failed judicial outcomes.’
In a response to a letter addressed to Mojapelo by Mr. Janice Greaver, a member C2C, the Acting Deputy Judge President of South Gauteng contemptuously dismissed the question of whether the judiciary has discretion to entertain and recognize authority that flows from a law of foreign state.
To me it is absurd that a judge like Willis J could behave in a manner that is not only barbaric but that is inimical to the rule of law and get away with it.’
Dr. Shumba said that: “It is worth highlighting that I did open a criminal case against Judge Willis, Advocate Christo Bothma, ENS attorney Kirsty Simpson, and the entire chain of actors who were involved in this travesty of justice.”
Is South Africa an Enabler of Zimbabwe’s Decay?
Tapuwa Chitambo, 13/01/2021
On 11 January 2021, Mr. Gwede Mantashe sparked a row with Zimbabwe, following a claim that the ruling ZANU PF party was trying to ‘blackmail’ the ANC in South Africa.
During the same period, a debate was raging in a WhatsApp group with the name – WHAT IS A LEADER – about the role of the Mojapelo-led South Gauteng Local Division bench in recognizing and enforcing a law that former Zimbabwean Minister Professor Jonathan Moyo aptly described as barbaric and satanic.
Honourable Mr Justice Mojapelo is the Deputy Judge President of the High Court of South Africa in charge of the South Gauteng Local Division which President Mnangagwa proudly credited for giving this draconian law a clean bill of health in June 2018,.
Mr. Mantashs may actually not know that the complicity of South Africa’s institutions has encouraged the ZANU-PF actors to abuse public power in the knowledge that they will get away with it.
Zimbabwe has been under sanctions for human and property rights abuses since 2001 but its neighbor, SA, has yet to openly acknowledge that ZANU-PF is an expert at scoring its own goals.
Mantashe suggested in the interview that Zimbabwean government officials were making threats in their diplomatic dealings with SA seemingly oblivious of many instances where the Zimbabwean government has openly and brazenly exported its tyranny to SA with no resistance at all.
The facts that have emerged are that on 22 May 2004, Mnangagwa personally hatched a scheme using his right hand sidekick Chinamasa to apply for the extradition of a businessman, Mr Mutumwa on trumped up charges.
This was to be based on the allegation causing export proceeds of SMM Holdings Private Limited (SMM), a Zimbabwean company, to be diverted to a SA company owned by Mawere
Notwithstanding the fact that on 39 June 2004, the extradition application was dismissed, Mnangagwa and Chinamasa achieved what they had failed to do using the justice system in SA, by issuing specification orders against Mawere, a South African citizen, and all his companies that employed more than 20,000 employees.
Subsequently, Chinamasa created regulations using the state of emergency laws allowing the government to divest and deprive Mawere of the right to appoint and remove directors of his companies and thus opening the window for Chinamasa to substitute the directors with his nominee Administrator.
Chinamasa appointed his crony, Mr. Afaras Gwaradzimba, as Administrator reporting to him directly. In an affidavit before the Zimbabwean court, Chinamasa openly told that court that he issued a limiting reconstruction order in relation to SMM without any involvement of Parliament and the judiciary.
Notwithstanding, his personal order became immediately operational. By using public power to change the control and management of a company, the successor company became an organ of state by the force of the law.
Using this corporate coup as a precedent, the government disguised as a company, formerly controlled by Mawere approached the Mojapelo led court suing Mawere on allegations of fraud in South Africa.
The question of whether the SA judiciary should have recognized the authority for SMM to litigate in South Africa that was born from the womb of a law that offends South Africa public policy especially given that the law and circumstances created by Mnangagwa and Chinamasa had no equivalent in SA.
This is because in South Africa, the control and management of a company as a going concern is vested exclusively directors appointed by shareholders and not by a public office bearer.
Mojapelo personally appointed Mr. Justice N. Willis to hear the case. Not only did Willis enthusiastically give audience to a captured company but he recognized the extra-territorial application of this repugnant law in SA.
He ruled in favor of the Chinamasa controlled company and in so doing set a judicial precedent that authority derived from a penal and confiscatory law of a foreign that is repugnant to the SA Constitution, notwithstanding the application of international law, can be recognized and enforced.
It would be unthinkable for a foreign mischievous government to be rewarded with a favourable order of court in a jurisdiction where the rule of law is respected.
The fact that this happened in a country where Mantashe is a Minister of government is significant.
In a conversation with Mr Mutumwa Mawere, Mr. Fred Mutanda, a Zimbabwean businessman, who had to seek refuge in December in the High Court last year after Dr. Nzenza, the Zimbabwe Minister of Industry and Commerce, had appointed a board of directors in a company in which the government had no shareholding to exercise this right, said about Willis:
“[1/12, 8:45 AM] Fred Mutanda: Good morning. It appears to me that the letter must be specific as to why it is alleged that the judiciary is captured.
The issue of diplomatic relations has nothing to do with the law. This is where I think the judge misdirected himself as this had nothing to do Wu the matter before the court.
To make it an issue for the Zondo Commission, the letter must use this argument for court capture
[1/12, 8:47 AM] mdmawere1: What do you think would be the best message to be included in the letter to demonstrate this important value add you make?
[1/12, 8:48 AM] mdmawere1: We have a community so that the outcome can also reflect the inputs of interested people in a matter.
[1/12, 9:20 AM] Fred Mutanda: Can I also have the judgment page on diplomatic relations
[1/12, 9:23 AM] mdmawere1: You mean the Willis Judgment?
[1/12, 9:24 AM] Fred Mutanda: Why did Mr Kyle withdrew from being your lawyer? Was he influenced by Zimbabwe?
[1/12, 9:25 AM] mdmawere1: He felt that the judge had already prejudged the matter and it was futile to proceed.
[1/12, 9:26 AM] Fred Mutanda: He was right
[1/12, 9:28 AM] mdmawere1: Do you also get the sense of frustration created by the judge in Rikki’s mind?
[1/12, 9:39 AM] Fred Mutanda: Certainly I get it
[1/12, 7:23 PM] Fred Mutanda: Highlighting Judge Willis’ diplomatic comments emphasize that he was more interested in protecting a neighboring country. He ignored the law and the Constitution of South Africa when he adjudicated the matter.
[1/12, 7:24 PM] mdmawere1: What if he had a pre-determined outcome having been bribed?
[1/13, 06:47] Mr Mawere: It is the case that Willis J had this to say inside the Mojapelo led court:“I also pointed out that the setting aside of action done in terms of legislation in Zimbabwe could have major diplomatic implications. This would necessitate the joinder of at least one South African cabinet minister. No member of the South African cabinet had received any notice of such an argument to treat as pro non scripto in a South African court actions done in terms of the laws of a foreign state.”
In truth and fact, the Learned Judge failed and refused to deal with the question of whether the judiciary should be tolerant to the blatant abuse of power in a neighboring country.
The law in question, the Reconstruction of State Indebted Insolvent Companies Act, which was only passed by Parliament after the use of a decree in relation to SMM, is still alive and well. It is has been used in relation to Air Zimbabwe and Hwange Colliery Company Limited.
Although this law divests directors of the control of a targeted company, it is significant that the author of this law was appointed by Mnangagwa to be the Chairman of a company whose control and management is supposed to be solely vested with an Administrator appointed by the Minister of Justice and not the court.
The Zimbabwe Government Exposed for Exporting Corporate Tyranny
What started as a quest for a shared understanding on what a company is and is not in a C2C WhatsApp group evolved into a full blown corporate literacy classroom which the iniAfrica news platform can exclusively report on.
In this instalment, iniAfrica news touches the centrality of the rule of law in creating better economies and analyses what happens when the law is manipulated at the expense of economies especially across the region.
In 2004, facts and circumstances that occurred in the territory of South Africa were used by the Zimbabwean government to create a crime in Zimbabwe resulting in a series of decisions and actions including the introduction of one of the most fascist laws whose application was exported to South Africa.
South Africa is the most sophisticated African state but this story points to some troubling issues regarding the role of the judiciary in providing constitutional safeguards that speak to the political morality entrenched in the constitution.
Although domestic laws of Zimbabwe have no extraterritorial application, this case study shows otherwise.
Fraud was alleged in relation to a court order that was sought and granted on 6 May 2004 in South Africa.
Instead of using the South African justice system to deal with the allegations, the Zimbabwean government arbitrarily chose to process the allegations on facts that took place outside its borders in the country.
The story below is taken from what was shared in the WhatsApp group this morning by Mr. Mawere in relation to the facts of SMM Holdings Private Limited (SMM), a company whose control and management was divested and deprived by the government of Zimbabwe.
Mutumwa Mawere – Yesterday, in a WhatsApp group called – WHAT IS A COMPANY – I posted a thread of a conversation with Mr. Tapuwa Chitambo, Secretary General of an organization called Friends of SMM (FOSMM), talking to the urgency and need to invest in corporate literacy.
Mr Chitambo is one of the founding members of FOSMM as well as a member of a WhatsApp group with the same name.
I then shared a thread of a conversation with Ms. Janice Greaver to Mr. Chitambo who then said: “Janice raises very pertinent issues. The exchange got me thinking I can identify companies that are in a similar position as was SMM back then.
These companies have been indebted to same corporates but the Recon Act hasn’t been used against them.”
Tapuwa and Janice don’t know each other personally but through the Connections2Communities (C2C) bridge, their minds on what Janice shared independently appear to be meeting since the aim of C2C is to provoke a possible paradigm shifting.
C2C is an initiative that seeks to empower and capacitate people to collaborate in solving problems and in collectively utilizing opportunities as compared to doing it individually.
The thread that I shared provoked Tapuwa to think and dig into his acquired inventory of knowledge to arrive at the conclusion that the SMM conundrum was shared by many other companies in Zimbabwe.
He makes the point that the control and management of SMM was divested from its shareholders and directors by virtue of a decree and an order issued by the Minister of Justice using State of Emergency powers.
The question that arose from Janice’s input was whether after the issuance of a Reconstruction Order, when the directors of a company are removed and succeeded by a State-Appointed Administrator, the consequences would be a company or another animal.
This then provoked the question – what is a company? What makes one creature of statute a company and another not?
In response to my question: “What do you think of Janice’s thinking?”, Tapuwa responded as follows: “She points out that by upholding the Judge Willis ruling, South Africa is setting a preference for the draconian law to get life.
Good observation when she asked which company was before the judge. SMM as a registered company under the companies act under the control of its shareholders or the SMM as a company under the reconstruction.
If it was the later then the courts should have looked through the law that gave it life – Precedence.”
Tapuwa raises important issues that help define the identity of a company and how significant the Judges Willis approach to the question of authority as critical issue in testing what is a company or not.
It is important to highlight the facts of the matter here:
In December 2003, the Reserve Bank of Zimbabwe (RBZ) announced new monetary measures that required exporters like SMM, a company that exported about 95% of its output, to surrender 50% of its export proceeds to the RBZ at an exchange rate determined by the RBZ irrespective of the exporter’s actual forex circumstances.
On the face of it, this measure resulted in limited forex available to exporters to import useful raw materials, consumables and equipment.
SMM was not spared of the attendant problems including accessing forex plus being able to cover domestic costs that were subject to hyperinflation.
Between January 2004 and April 2004, the problems caused by this non-market public policy imposition became apparent and acute but however, despite representations to the RBZ and Ministry of Finance, there was no change of policy.
A company called Petter Trading Pty Limited (Petter) was the group procurement company based in SA. As at 30 April 2004, the company was owed about R26 million by SMM which could not pay since forex was now controlled by the RBZ.
In order to protect Petter from attacks by its South Africa based creditors, a court order was sought and obtained in South Africa permitting a company called Southern Asbestos Sales Pty Limited (SAS) to pay to Petter in lieu of what Petter was owed by SMM.
A cession court order was sought and obtained in South Africa with the knowledge and consent of SMM.
SMM, Petter and SAS were all companies under one common control although SMM was incorporated in 1923 and operated in terms of the laws of Zimbabwe. SAS and Petter were SA corporate citizens and by the time of these court arrangements, I was already a citizen of South Africa.
The events that then followed when the existence of the cession court order were made available to the RBZ by SMM seeking to alert the RBZ to the devastating impact of the monetary measures that had been introduced are subject of speculation and innuendos of unprecedented levels.
Allegations were made against me that I had authorized to get cession agreement and caused the cession court order to be sought and obtained in South Africa to allow forex destined to SMM to be diverted in South Africa to Petter.
It was held that Petter and SAS were Mawere companies and as such the alleged diversion was fraudulent to the extent that the court order was solely intended to create a justification for SAS not to remit export proceeds by paying to Petter the judgment amount.
In Zimbabwe this commercial transaction was dramatized to create the impression that the alleged diversion was true and fact.
Although the three companies had their own directors who controlled the affairs of the company, the government of Zimbabwe took the view that it was in the best interests of justice to divest and deprive me of any shareholding relationship with SMM.
The first attempt was to apply for my extradition from South Africa to Zimbabwe ostensibly to assist the authorities in investigating the alleged fraudulent scheme.
A warrant of arrest was issued in Zimbabwe on 17 May 2004 and I was then arrested by Interpol on 22 May 2004. On 25 May, I was granted bail and the matter was to be heard on 30 June 2004.
On the 29 June 2004, the Zimbabwean authorities processing the matter indicated that they were not ready for trial and requested a postponement of 60 days.
My attorneys refused the postponement and the matter proceeded to be determined by the Magistrate as to whether to extend the bail or not. The application for extradition was dismissed.
Following this dead end, the next attack by the government of Zimbabwe was to invoke the Prevention of Corruption Act against me personally on 9 July 2004 on the same allegations that informed the extradition application.
On 13 August 2004, an Investigator was appointed to investigate my affairs although it was known that I was not a resident of Zimbabwe since 1988.
When they discovered that specification was not the appropriate punishment, they proceeded to specify all companies including SMM that were deemed to be under my control. This was done on 26 August 2004 and again this did not yield the intended results.
On 3 September 2004, President Migabe promulgated the Reconstruction Regulations, a statutory instrument allowing the Minister of Justice to issue the Reconstruction Order without the involvement of the judiciary.
On 6 September 2004, an Administrator who was only officially appointed on 14 September 2004 assumed office and dismissed the entire boards of all targeted companies.
The question that then arises is which SMM sued in the SA justice system and whether the court in South Africa had any discretion to recognize the new creature that was born from the use of public power.
Tapuwa after considering Janice’s observations concluded as follows: “I think this needs to be tested and the judgement nullified or reversed. This could be the entry point I into this matter.”
He then promptly requested to join this group. He also informed me that because of data, his access to internet and related services were challenged.
Accordingly, he requested me to assist with data. I then shared the request in the group but no one responded. It was only yesterday that I spoke to Mr. Tendai Mandhlazi about the data challenge.
We both agreed that it was important to do a fund raising awareness and exercise to see if any member of this group would see the need to build it.
I asked Tendai how much he was willing to contribute. He gave an amount of R100 and I responded with my own pledge of R500.
I am pleased to inform this group that a fund now exists that started with R700 being my contribution of R500 and Tendai’s final contribution of R200. I was informed by Tendai that he had paid data of R300 leaving a balance of R500 in the kitty.
If you believe that this project is important and next steps have to be taken to seek clarity on what is a company and more specifically what became of SMM after the coup of 6 September 2004 when the directors were dismissed outside the provisions of the Companies Act and if you are interested in contributing ideas and funds to learn from real life case studies, please step forward.
Mmusi Maimane Is a Hypocrite on the Zimbabwe Issue: Mutumwa Mawere
Brian Kazungu, 08/01/2021
In a Twitter post, Mutumwa Mawere questioned Maimane’s endgame on the Zimbabwe issue and described as crazy Maimane’s ‘dream’ of being relevant in solving the murky problems of Zimbabwe when he was deposed of his presidency of the Democratic Alliance (DA).
While responding to a tweet by Maimane in which he described Zimbabwe’s president Emmerson Mnangagwa as a brutal dictator who has been part of a corrupt oppressive machinery, Mutumwa referred to Maimane’s words as infantile disorder expressing itself in many overt ways.
In another related engagement, a fierce dispute arose in a WhatsApp group called – WHAT IS A COMPANY – that is part of a corporate literacy campaign spearheaded by members of the C2C initiative.
This came after Mutumwa Mawere shared a thread yesterday, under the title: “Mmusi Maimane on the Beitbridge Zim Crisis,”.
Mr. Elvis Mugari, who is also a member of the group seconded Maimane’s stance on the Zimbabwe situation by saying: “I vehemently agree with Maimane. As long as the ANC government support the regime in Zimbabwe, South Africa will pay the ultimate price!”
However, Ms. Lebo Mokhesi who also joined the fray said: “Mmusi should have started this conversation whilst he was still relevant in politics. This is a little too late and very convenient for him.”
iniAfrica News is a member of C2C, a diverse and inclusive platform for community problem solving which tackles life changing corporate, civic and legal literacy campaigns which helps in the pursuit of excellence in our communities which are evidently divided.
Our job is to inform, educate and entertain through being a gateway for information dissemination even of social media conversations into the mainstream media platform including the internet.
This is because we have seen it is gratifying to know that not all social media groups are merchants of divisions as some seek to establish a shared understanding on matters of interest to communities across the world.
We believe in playing our part in building inclusive communities by provoking the writing of content that speaks truth to power as a necessary vehicle to bridging the divides.
Please join us in deepening and broadening the space for dialogue and not the space for walls.
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