Venturas & Samkange, ACR’s attorneys, say Police Assistant Commissioner Freedom Gumbo’s conduct on February 4 amounted to “contempt of court, abuse of authority and robbery”.
In a letter to the Ministry of Home Affairs Venturas & Samukange describe how Gumbo and police officers pounced on the RBZ offices and seized diamonds in contempt of a court ruling.
Home Affairs co-minister Giles Mutsekwa yesterday acknowledged receipt of the letter. He however said the letter should have been directed to the Ministry of Justice.
He said the letter had since been forwarded to the Justice ministry to look into the matter.
This comes as the Zimbabwe Mining Development Corporation and Minerals Marketing Corporation of Zimbabwe (MMCZ) last year appealed to the Supreme Court against a High Court judgment by Justice Charles Hungwe restoring rights to the Chiadzwa claim to ACR. Justice Hungwe also noted that any appeals would not “suspend the operation of the order”.
Chief Justice Godfrey Chidyausiku ordered last month that diamonds seized from ACR and all diamonds mined by Mbada and Canadile, the two companies mining on the claims, be sent for safekeeping to the RBZ until the ownership dispute was resolved.
The letter by ACR’s lawyers was copied to President Robert Mugabe, Commissioner-General of the Zimbabwe Republic Police (ZRP) Augustine Chihuri, and Reserve Bank governor Gideon Gono.
Chief Justice Chidyausiku is said to have handed the order to transport the diamonds to the deputy sheriff.
On Tuesday, February 2, the deputy sheriff visited MMCZ Offices to examine, identify and label the diamonds which the Chief Justice had ordered to be surrendered to the Reserve Bank.
According to the letter, he was not able to complete the process that day and continued the following day. However, when he finished, it was too late to transport the precious stones to the RBZ.
The following day, on Thursday, February 4 the deputy sheriff went back to the MMCZ offices and collected the diamonds that had been sealed in a “strong box.”
But, the letter said, as he was leaving the MMCZ offices, he was confronted by Mines Minister Obert Mpofu who claimed that the Chief Justice was going to suspend Justice Hungwe’s order.
Mpofu is said to have demanded that the diamonds remain with the MMCZ.
His argument was premised on a letter authored by Nomonde Mazabane, the Registrar of the Supreme Court.
In the letter, the registrar indicated that Chief Justice Chidyausiku had advised that his order would suspend the whole of Justice Hungwe’s order. The lawyers said the letter did not say that the whole judgment would be set aside. In fact it was pointed out that the letter was not an order.
Encouraged by the registrar’s letter and his own interpretation, Mpofu is said to have attempted to stop the transportation.
The letter reads: “The deputy sheriff, quite rightly, stated that he would disregard the letter as it was not a court order. It is not unusual for a judge to hand down an order and then hand down his reasons a short while later. However, it is very unusual for a judge to instruct the registrar to advise the parties to an application of the effect of the order when he only intends to hand down his reasons ‘shortly’. Such a letter has no legal effect. It is only the judgment which has legal effect.”
Ironically, the registrar sent the letter to the legal practitioners of the ZMDC and then sent copies, “not only to the other parties to the application, but also to the legal practitioners of the minister, who was not a party to the application.”
Curiously, according to the ACRs lawyers, the letter from the registrar was dated February 4, the day the deputy sheriff was removing the diamonds from the MMCZ.
“The letter obviously gave the minister (Mpofu) what he wanted — a reason to threaten the deputy sheriff and officials at the Reserve Bank and frustrate the execution of the existing order of the Supreme Court.
“The deputy sheriff then took the case with the diamonds to the Reserve Bank and surrendered them to the officials. While the deputy sheriff was still at the Reserve Bank, Assistant Commissioner Gumbo came to the Reserve Bank accompanied by several armed policemen and demanded at the ‘order of the minister’ that the diamonds be handed over to him.”
Although RBZ officials are said to have been reluctant to release the diamonds, Gumbo threatened them with arrest.
Only then did the RBZ officials hand over the case containing the diamonds.
Upon receipt Assistant Commissioner Gumbo did not leave a receipt.
“We do not know what he (Gumbo) did with the diamonds. We consider that the actions of Assistant Commissioner Gumbo were completely unlawful and in contempt of a court order.”
The lawyers argue that Mpofu had no lawful right to “interfere”.
The letter adds: “It is bad enough that the Minister of Mines should personally interfere with the judicial process of implementing an order of the Supreme Court. However, the position was made worse by the fact that Assistant Commissioner Gumbo, because he was told by the minister to seize the diamonds from the deputy sheriff or officials of the Reserve Bank, did so without any attempt to ascertain that the order of the minister was lawful. There is no rule of law if police officers blindly carry out an order given by a minister of state. Police officers should only act when they are satisfied that the complaint of the minister has a sound legal base.”
The lawyers say that Mpofu’s personal intervention aided by a senior officer of the ZRP is an unlawful act designed to frustrate compliance with an order of the Supreme Court, and pursuant to such litigation, is hardly likely to inspire confidence in the ZRP, orders of the court and the rule of law in Zimbabwe.
“We ask that this matter be investigated and that appropriate action be taken against Assistant Commissioner Gumbo. We also ask you to confirm that the Deputy Sheriff will not be obstructed in his duties, particularly in the enforcement of the provisions of the Order of the Supreme Court in case No SC 2307 09, and that the necessary instructions are issued to the Commissioner-General of the ZRP,” says the lawyers.