THE case of exiled Zimbabwean business tycoon Mutumwa Mawere, who was controversially muscled out of Shabanie-Mashaba Mine (SMM) Holdings, is now at the centre of judicial capture.
Mawere was in 2006 sued by SMM at the Gauteng High Court over an R18 million debt by Southern Asbestos Sales Private Limited, a South Africa-based company he once controlled.
Justice Nigel Willis granted an order, as sought by the applicant, that Mutumwa and his co-defendant, Parmanathan Mariemuthu, pay the debt plus interests.
Mawere has contested the decision, arguing that the judge was acting on a case initiated by the Zimbabwean government that grabbed SMM.
Recently, Connections2Communities (C2C) corporate literacy initiative management consultant Janice Greaver, wrote to the South African justice department questioning the court’s role in promoting the rule of law citing Mawere’s case.
She argues, in the court papers, that the handling of the matter undermined the rule of law in relation to corporate matters and the role of the board in controlling and directing the affairs of the company.
Greaver cited the matter of Shabane-Mashava Mine (SMM) Holdings Private (Ltd) v Mutumwa Mawere and Parmanathan Mariemuthu that was presided over by Justice Nigel Willis, as a case study.
She said the plaintiff was a company called SMM Holdings while the defendants were natural persons.
Greaver interrogated whether the company that was given audience by the South African court was registered in line with the Companies Act or it was a state organ.
On September 3, 2004, the government issued a decree through the then Minister of Justice, Legal and Parliamentary Affairs Patrick Chinamasa to take over SMM. The company was later placed under the judiciary management of Arifas Gwaradzimba.
“The authority of SMM to litigate in South Africa was based on the fact that the control of the company was robbed by an act of a foreign state in a manner that even Judge Willis accepted was draconian and socialist. Notwithstanding, the learned judge proceeded to recognise and enforce the authority and awarded this creature of statute a monetary judgment and in so doing put the entire judiciary into disrepute.
“In this matter, the question is whether your court in terms of international law, had any discretion to entertain and enforce the purported rights of the Zimbabwean government that approached the courts under the guise of a company.
“If the directors did not authorise the litigation, then Rule 7 of the Uniform Rules of your court demand that when authority is challenged, no further steps can be taken in processing any dispute until the authority question is satisfactorily resolved by the court,” read part of the letter dated January 12, 2021.
The letter further castigated the judiciary system for refusing to test and resolve the authority issue despite the provisions in the South African Constitution that empowers the Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa with powers to regulate their own process in the interest of justice.
“The question that arises is; did your court undermine the due and proper administration of justice by giving audience to an organ of a foreign state as if it had bona fide rights to assert in a court of law?
“In a constitutional democracy, I would like to believe that no one is above the law.
“However, your court seems to be the law unto itself. We have resolved to bring these matters to the attention of both the JSC and the Zondo Commission to get guidance on whether your court is acting in the interest of justice, or whether it is captured.”
The acting deputy Judge President Roland Sutherland in his reply dated January 14, 2021 said parties are at liberty to act as they deem fit.
He wrote; “Your letter dated January 12, 2021 has been received and the contents noted. No action from this office is necessary and parties are at liberty to act as they deem fit. Correspondence on this topic is now closed.”