Terrence Mawawa| Mr Nick Van Hoogstraten (NVH), the second largest shareholder of Hwange Colliery Company Limited is set to appear before the Temba Mliswa-led Parliamentary Committee on Mines and Mining Development on 3 December 2018 in the wake of the ongoing saga regarding the facts and circumstances of the unilateral decision by Honourable Ziyambi Ziyambi to issue a reconstruction order in relation to the company.
Mliswa informed his colleagues in the Committee as follows: “On another note I received a call from Van Hoogstraten who said he had come all the way from London to appear before us. I subsequently advised him to come before us next Monday at 09:00hrs. Please note accordingly.”
The request by NVH to appear before the Committee flies in the face of the opinion by the Attorney General, Mr. Prince Machaya, that Parliament does not have the jurisdiction in respect of a company that has been placed under reconstruction.
The control and management of Hwange is now vested with an Administrator who was appointed by Ziyambi Ziyambi in his capacity as the Minister of Justice, Legal and Parliamentary Affairs who is vested with the power to substitute the Courts by issuing an order that has the same force and effect as any judicial order.
It is not clear at this stage what would be the angle that NVH would want to share with the Committee but it has been established that an application for the confirmation of the reconstruction order is now before the Court.
Ms. Miriam Mutizwa, a member of the Friends of SMM (FOSMM), the first targeted company in 2004 for this extrajudicial reconstruction had this to say: “Mr. NVH may not know what I now know that this application to confirm an order issued by the Minister of Justice in relation to Hwange is a final order disguised as a precursor to a court order. It is meant to create the impression that the Ministerial order is meant to address an emergency in order to justify why the role of the Courts in issuing all orders is sidestepped. I have had the opportunity of following the SMM matter closely since the placement of Hwange under reconstruction and I must say that there can be no moral, legal and constitutional basis for a creditor to help himself by writing his own law and then seek to enforce it with the complicity of the Courts.”
Mr. Chitambo, the Secretary General of FOSMM said: “I have listened to what the AG had to say to the Parliamentary Committee. It is clear that he lied about the effect of the reconstruction order on the rights of shareholders and creditors. In respect of a judicial management order, all the affected parties are served with the papers. No creditor approaches the Court after the fact. Both a creditor and a debtor approach the Court without any shackles created by another litigant. In this case, the Minister approaches the Court as an Applicant in respect of a company that he has no control or interest in. It is the Minister that is the Applicant who approaches the Court to confirm a decision he would have made outside the four corners of the Court yet the AG considers this to be in line with constitutional prescripts.
We have an application pending before the Courts in the name of FOSMM challenging the legality and constitutionality of the Reconstruction Act. In the case of SMM, the then Minister of Justice, Hon Chinamasa, admitted that he had not notified the company’s shareholders and creditors before issuing the order.
In addition, when the SMM reconstruction order was issued, the Act did not exist. A decree was promulgated by former President Mugabe that was used to justify the extrajudicial issuance of a limiting order.
In the case of SMM, the reconstruction order was confirmed after more than 13 months by a judge in chambers.
No shareholders and directors were informed of the fact that an application was launched and the order was, therefore, granted without the participation of the company’s stakeholders.
It is the case that in respect of Hwange, an application for confirmation has been issued within the prescribed time frame largely because of the attention the matter has received. Notwithstanding, the company is under the control of the Minister who is also the Applicant. There is no provision for the order to be rescinded or canceled by a Court of law. It is only the Minister who has the power to amend or vary it. The court’s role is only limited to confirming the Ministerial order.”
Below is a copy of the application by Hwange for judicial management and it will be noted that the such an application is made by the Company and the papers are served on all the parties relevant in the matter.
Notwithstanding the above, the AG believes that it is permissible for a creditor to seek to self-help with the assistance of a dedicated law. Although he accepts that in the case of judicial management, it is the Court that appoints the Judicial Manager, he is of the view that as long as the creditor is an organ of state, preference should be condoned despite the limitations imposed by the constitution.
Asked whether there was a need to align the Reconstruction Act with the 2013 Constitution, the AG said that alignment would only be necessary if the Act is deemed to be inconsistent with the Constitution. However, his considered view is that there is nothing wrong with a law that offends the audi partem principle.