TODAY (Tuesday) is a very special day for me, for it was the day I was born.
When I woke up today I expected to get pleasant birthday messages and presents as is customary.
However, this year my unforgettable birthday presents were a number of articles containing outrageous and defamatory allegations made by Justice minister Patrick Chinamasa during a hearing conducted by the Portfolio Committee on Mines and Energy chaired by Edward Chindori-Chininga on Monday.
It was only in November 2010 that Chinamasa had objected to my appearance before the same committee on the grounds that doing so was subjudice and yet when he appeared on Monday, I am informed that he felt so comfortable to make statements which when fully analysed expose a scary phenomenon that would not ordinarily be associated with a transitional democratic constitutional order.
It is instructive that Chinamasa insisted that I did not own SMM Holdings Ltd (SMMH), a company incorporated in the UK that is the sole shareholder of SMM Holdings Pvt Ltd (SMM).
He then made the point that I was responsible for the collapse of SMM. In addition, Chinamasa stated confidently that: “The situation right now is that SMM Holdings is 100% owned by government. (Mawere) has never been the owner even on the basis of the sale and purchase agreement and we gave him de-facto control of the companies, but not ownership — as ownership of SMM Holdings resides with the government of Zimbabwe, 100%.
“Mawere failed to raise the US$60 million required to complete the acquisition of the company from its previous United Kingdom-based T&N Plc.”
After reading the above, it becomes critical to question the kind of constitutional order that would permit a Minister of Justice to make comments about a transaction that took place before he was appointed minister of the government of Zimbabwe, and more significantly why it would be his business to retrospectively seek to review without the assistance of a competent court of law a transaction involving foreign domiciled companies.
If Chinamasa on July 9 2004 came to the conclusion that it was in the interests of justice to specify me in respect of the affairs of SMM, then how can it be the case that after six years I am suddenly irrelevant? If I am irrelevant today, then it stands to reason that I should have been irrelevant then.
If I had not been the owner of SMM as alleged by Chinamasa, then why would it be the case that I could be credited with destroying that which I did not own in the first place?
Chinamasa makes the case that he, and not the seller of SMMH, gave control of the companies to me but not ownership, without explaining how control can be legally divested from an owner without an agreement providing for the transfer of ownership and control.
If it was the case that I had no ownership rights as alleged, then the only relationship between the previous owner of SMMH — T&N Plc — and Africa Resources Ltd (ARL), as the purchaser, would have been that of principal and agent.
As a lawyer, Chinamasa should know that you cannot refer to an agreement being that of sale and purchase if in reality the outcome is that one would be an agent of a contracting party.
A sale and purchase agreement produces outcomes that are well established at law and yet Chinamasa would want the world to buy into some logic that such an agreement would produce some other absurd outcomes presumably only because he wants to justify the unlawful seizure of a private company.
If it is indeed true and factual that the Zimbabwe government was involved in the acquisition of SMMH, then there would have been no need of passing a new legal instrument to allow the appointment of an administrator by the executive branch of government, rather than by the judiciary as prescribed by the Companies Act that has general application.
It is significant that Chief Justice Godfrey Chidyausiku at the opening of the 2011 Legal Year on Monday made the following observation: “The doctrine of the separation of powers and independence of the judiciary should be respected. While the judiciary and the executive all occupy influential positions in society, we are not one and the same and our decisions on issues need not necessarily be the same.”
Why would the Chief Justice make such an observation if there was no problem in Zimbabwe? However, when the problem emanates from the office of the minister in charge of promoting justice and equity, then one must know there is a much more fundamental problem at play in Zimbabwe.
Where else can a Minister of Justice be involved in undermining the rule of law and respect of property rights?
The minister makes the case that I failed to raise the US$60 million required as the consideration for the shares in a UK-based company and not a Zimbabwean company where he has jurisdiction. If this was factually correct, then the injured party would be the seller and any rational seller would not need the assistance of Chinamasa to assert its rights.
Why would Chinamasa want to superimpose himself in a commercial transaction? The only justifiable reason would be that he had no other window to poke his nose in this transaction other than invoking state of emergency powers to achieve what could not be achieved using existing laws.
How then would the government now end up owning 100% of a UK registered company? Chinamasa made the case that through a nominee company, AMG Global Nominees Pvt Ltd (AMG), the government of Zimbabwe had purchased the rights held by T&N by way of security in a legitimate transaction, but forgot to tell the committee that AMG lost the case resulting in the ownership remaining the way it was in 1996 through the day I was legally disabled using unorthodox measures.
Incidentally, AMG are the initials of Gwaradzimba standing for Afaras Mtausi Gwaradzimba. The minister made no attempt to explain why it was prudent and in the national interest to use a company controlled by Gwaradzimba as a nominee.
If the reason for placing SMM under reconstruction was that it was state indebted and insolvent, then surely such a company would legally have its liabilities exceeding the assets it owns and the residual value will have to be negative and yet in this unusual case, Chinamasa does not see a problem in justifying the payment of real value for something that was already destroyed by me.
Some have warned me not to respond but this is a case that demands response because ultimately, if we remain silent in the face of tyranny and abuse then history will not judge us correctly. There are certain decisions, choices and actions that are so reprehensible that they compel any rational human being to be outraged.
It is evident that Chinamasa has made this a personal fight against me. He is a state actor armed with state powers and I have been transformed into his opponent without access to the same powers that he has by virtue of the peoples’ power underpinning his authority.
To establish ownership, one needs not go any further than visiting the Companies House website www.companieshouse.gov.uk to search for SMMH details. You will easily establish that I am one of the directors of SMMH. How then could I end up being a director of UK company purportedly controlled by my self-declared worst enemy? It is a pity that the resources available to the committee presumably did not permit them to access this publicly-available information.
The records of the company will show that ARL through its wholly-owned subsidiary, Africa Construction Ltd (ACL), is still the sole shareholder of SMMH.
If this was the case in 1998, how then can Chinamasa purport to represent a company that is capable of representing and asserting its own rights?
What is Chinamasa’s interest in SMM? Only history will be the judge, but what is instructive is his persistence and his unwillingness to see logic and pretend that we are all fools.
It is unfortunate that it is our silence that defines our generation. We have many cowards who refuse to express their outrage, leaving it only to victims to be the authors of their condition and circumstances.
This matter is pregnant with lessons of how not to build a nation. Imagine Chinamasa, a senior member of Zanu PF, a party that has just completed its annual conference under the theme of ‘Total Empowerment’, would appear before the committee and boldly claim that Chinese investors are more acceptable than a previously-disadvantaged person like me.
What I know is that Chinamasa, who is already behaving as if he was the president, if he were to have his way, he would have no problem being the persecutor, prosecutor, judge, and only God knows what else on matters concerning me.
What is it that I am supposed to have done to make this man so angry and irrational? The company in question was privately-held and the shareholders at the point of transaction were fully entitled to refuse to proceed with it and yet history will record that the transaction was indeed completed in accordance with the wishes of both parties.
If the Zimbabwe government was involved in the transaction, then it would need no assistance from Chinamasa — rather the Minister of Finance would be competent to represent the interests of the state and yet in this unusual case, the only person who appears to be empowered to deal with me is Chinamasa and no other.
He made a very significant point that in his opinion, I remain guilty as charged and in so doing castigating the Co-Ministers of Home Affairs for making the decision to de-specify me.
If the Chief Justice needed any evidence of political meddling and unacceptable behaviour of any member of the executive, he needs to go no further than follow closely the SMM saga.
To imagine that this absurdity can occur after more than 30 years of Independence is to question the justification of the liberation struggle. — newzimbabwe.com.