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SA businessman petitions Zondo over Shabanie Mine

SYDNEY KAWADZA
SOUTH African businessman, Cleopas Sanangura has petitioned courts seeking reprieve over adverse rulings made against Shabanie Mashaba Mines in the South African legal jurisdiction.

Cleopas Sanangura

The adverse rulings against Shabanie Mashaba Mines were on cases brought by the government of Zimbabwe to South Africa seeking to claim money allegedly siphoned out of the country.

Sanangura claims the litigations against SMM by government-appointed administrator Arafas Gwarazimba were beyond the South African courts’ legal power or authority.

In a letter to SA’s acting chief justice Raymond Zondo last month, Sanangura, said he had lost his job at Southern Asbestos Sales (Pty) (SAS) because of a dispute involving SMM and the Zimbabwean government.

The SAS was in the business of invoicing and collecting of sales proceeds on behalf of SMM Holdings, a wholly owned subsidiary of a UK-registered company incorporated and operating under Zimbabwean laws.

The case is part of a raging war between the government and several companies and individuals seeking justice after the former’s hostile takeover of SMM through an administrator in 2005.

Government appointed Gwaradzimba as the SMM administrator, ostensibly, to turn around the company’s fortunes including coming up with debt repayment plans for the company among other duties.

In his petition to Zondo, Sanangura raised complaints against several judgments passed by the South African High Courts against SMM.

He cited a judgement by High Court judge Willis J delivered on October 11, 2012 arguing that it was in favour of a “creature described as a limited liability juristic entity yet the authority to litigate in South Africa was not preceded by any recognition of the administration, a creature of a foreign statute, to represent the former company before state capture.”

“Clearly, the control and management of SMM was divested by an act of state and despite the authority challenge having been asserted not only in this matter, all the SA judges were at one in finding that they lacked title to interrogate the authority conferred on the administrator pursuant to a law that is draconian and ultra vires the SA constitution, Sadc Treaty and Protocol and international law,” Sanangura said.

He further cited the Cross Border Insolvency Act which dictates that a foreign representative of a company registered outside South Africa is bound by the same law to comply with its provisions.

“The learned judge had no title to entertain an application launched on the authority of an unrecognised foreign representative who had a duty to apply for leave to commence proceedings against SAS in South Africa,” he said.

Sanangura said another judge, James Epstein, also refused to be bound by the law “completely and deliberately” ignoring that the SMM administrator’s appointment was not preceded by any foreign judicial proceedings.

He described the SMM hostile takeover as barbaric and draconian, adding that the judgement undermined the integrity of the South African justice system.

“It is not in dispute that Justice Esptein created a contractual nexus between SMM and SAS allowing SAS to be liable for the principal amount involved in the trade rather than SMM’s customers being liable for such,” he argued.

Former SMM employees have also challenged the Reconstruction Act, used in the takeover, arguing the law brought them nothing but suffering.

The workers claim they have not received their terminal benefits since the company closed shop in 2012, a few years after the government takeover.

A Harare resident, Tichaona Mupasiri, also dragged President Mnangagwa to the High Court challenging the appointment of an administrator for SMM.

In another matter presided over by Weener AJ, Sanangura said Gwarazimba used the South African courts to assert rights that were political.

“The issue of SMM’s authority to litigate in this dispute and as expected, the Learned Judge made the following finding notwithstanding the fact that in Zimbabwe, SMM had purportedly been reconstructed and a new interim board had been appointed yet the administrator who (sic) term should have ended with the issuance of shares to the state remain in control,” he said.

He said the judge was also aware that a ministerial order giving authority to Gwaradzimba’s appointment was confirmed by a Zimbabwean court in violation of the doctrine of separation of powers.

In another issue – Case No. 9367/07 – with the applicant seeking whether the Reconstruction Act should be recognised in South Africa and whether the litigation by Gwaradzimba should be stayed, the judge, Campbell AJ set aside all the judgments recognising and enforcing rights asserted on behalf of a foreign government.

Sanangura further charged that it was regrettable how the Zimbabwean government, which he described as rogue, can enforce rights acquired through abuse of power in a foreign country with judicial activism. He said he expected South African courts to be impartial and independent adding that he believed that Zondo’s response to Lindiwe Sisulu’s recent attack on the judiciary was also linked to his case.

Zondo recently argued that evidence-based discourse is in the interests of building an inclusive South Africa and Sanangura further cited that this also applied to his query on the SMM and Zimbabwe government dispute affecting South African companies and individuals.

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