Friends of Shabanie Mashaba Mines (FOSMM), a not-for-profit organization has launched an application to compel President Ramaphosa to take steps to correct the unconstitutional and unlawful recognition and enforcement of the rights acquired by the government of Zimbabwe in relation to SMM through a decree in the territory of SA.
In their latest suit that is directed to the South African presidency, FOSMM states that the South African government acted unlawfully by allowing a Zimbabwean government order to take effect in South Africa, which is outside its legal jurisdiction and unlawful in the land.
Mr Fred Mutanda the Chair of FOSMM stated that no application was made for the recognition by a Court of law in SA of the authority of
the Administrator appointed in terms of the Reconstruction Law to act on behalf of SMM.
“The SA judiciary recognized and enforced the Reconstruction Act without regard to the limitations imposed by international law in relation to laws that offend public policy”
SMM, formerly owned by businessman Mr Mutumwa Mawere owns asbestos mines—Shabanie in Zvisvavane and Gaths in Mashava. Both mines ceased operations one and half decades ago due to lack of funding and corporate conflicts.
It was placed under reconstruction in terms of Presidential Powers (Temporary Measures) (Reconstruction of State-Indebted Insolvent Companies) Act on September 16, 2004 and confirmed by the High Court on December 15 a year later, under the instruction of then Patrick Chinamasa.
Chinamasa appointed SMM Holdings administrator Afaras Gwaradzimba who allegedly sold land under the company’s mining leases, with the land set to be converted into residential stands.
Mr Fred Mutanda the Chair of FOSMM said that the reconstruction decree offends public policy and as such it is not law at all as it is premised on principles that violate the doctrines of the separation of powers and equality.
The law permits a Minister to issue an extra-judicial order whose effect is to divest and deprive shareholders and directors of the control and management of a company.
The Administrator, a creature of statute, was appointed by Chinamasa to replace the directors of SMM, and his authority to act on behalf of SMM in relation to litigations in SA seems to be the at the core of this application.
It is a requirement of SA law that a foreign representative of a company under liquidation or similar circumstances be recognized formally by application to a court for such recognition.
It is fact that SMM under Gwaradzimba’s control did not comply with this legal requirement.
In addition, international law and the SADC Treaty and Protocol prohibits the recognition and enforcement of any law that offends public policy and is also penal in nature by a forum country like SA in this matter.
It is alleged that SA judges failed to prevent this invasion from taking place as required by international law.
Against this background, we had no choice but to approach the High Court seeking an order to compel President Ramaphosa to play his role in protecting SA from being a forum where barbaric laws are enforced by rogue and predatory foreign states.
Even after given a seven day ultimatum to respond to the matter through FOSMM Holdings Private Limited’s attorney A. G Mulaudzi Attorney, Ramaphosa seemed to have not taken the case seriously, forcing a lawsuit.
Gwaradzimba was appointed by government to take over SMM a move which the South African arm has called illegal and demanded that they must ignore the illegal appointment of those directors to act on behalf of their company.
In a court challenge filled at South African court, FOSMM have argued It cannot be said that all the judgments granted by the High Courts of SA, the SCA, and the SA Constitutional courts in favour of the government of Zimbabwe dressed as a juristic entity paint a picture of a systemic failure by the judiciary of SA to protect the constitutional order in SA especially against the recognition and enforcement of laws that are designed to undermine the rule of law.
It is however trite that the control and direction of a company is vested in its board of directors, yet SMM litigated in SA without bothering to obtain recognition by a Court of law as required by law.
Earlier on, SMM employees, who are seeking the removal of Mr Gwaradzimba lodged an application to the Minister of Justice, Legal and Parliamentary Affairs Ziyambi Ziyambi expressing concern over the disposal of vast tracts of SMM land “which runs contrary to the entire purpose of the reconstruction order given in 2004”.