Terrence Mawawa|Ms. Miriam Mutizwa, a Zimbabwean born UK resident who has been following closely matters related to the existence and operation of the controversial Reconstruction of State-Indebted Insolvent Companies Act (the Act), asks whether Hon Mliswa is a villain or victim in the Hwange and SMM matters as his conduct seems to be inconsistent, contradictory and untenable for a Chairman of multi-party forum as the Portfolio Committee of Mines and Mining Development.
“The facts and circumstances surrounding the invitation of Mr. Nicholas Van Hoogstraten (NVH) to present oral evidence in relation to the affairs of Hwange Colliery Company Limited (Hwange) yesterday remain clouded in mystery.
This is the message that Hon. Mliswa shared with his colleagues who are members of the Committee on Mines:
It is clear from this message that it was NVH who initiated the request to appear before the Committee.
In addition, it cannot be disputed that the version that Hon. Mliswa presented following the abortive hearing that was scheduled to take place yesterday, is not supported by any facts that there was any prior attempt by NVH through the Clerk of Parliament, Mr Chokuda, to request his appearance before this Committee.
It would appear that there exists only one plausible version that on 27 November 2018, NVH reached out to Hon. Mliswa via a telephone message that he had come all the way from London to appear before the Committee.
If this is correct, then it follows that NVH had proceeded to visit Zimbabwe without the knowledge and consent of the Committee members.
It seems to be the case that Hon. Mliswa subsequently advised NVH to come before the Committee on Monday, 3 December, 2018.
It is not at all clear whether in the subsequent call, Hon Mliswa had informed and sought the consent of his Committee for NVH to be granted audience by the Committee.
Notwithstanding, the meeting proceeded on the basis agreed to between Hon. Mliswa and NVH.
With respect to jurisdictional facts, it is not clear what legal authority NVH possessed entitling him to substitute the directors who by law are vested with the control and management of a company.
Furthermore, I doubt that NVH had the support of the Administrator who in terms of the operation of the Reconstruction Act is now vested with the exclusive control and management of Hwange.
It is my understanding that in terms of the Act, the Minister has the power to issue a quasi-judicial order that permits him to substitute the board and shareholders of Hwange.
I was, therefore, perplexed to hear that the Parliamentary Portfolio on Mines and Mining Development resolved to hold back on cross-examining NVH because the Hwange reconstruction is before the courts when in truth and fact, it is now law in Zimbabwe, a point NVH may be ignorant of, that an order issued in respect of a targeted company like Hwange, cannot be varied or rescinded by any court of law.
If my understanding is correct, then there is no locus for NVH to challenge an order that the Court has only been granted by law to confirm and nothing else.
No shareholder or director has legal standing to challenge the intended confirmation and at the very least one would expect NVH’s lawyers to know the mischief in the Act.
It is trite that in terms of the Reconstruction Act, every disposition of the property, including rights of action, of the company and every transfer of shares or alteration in the status of its members, made after the commencement of the reconstruction, shall, unless the administrator otherwise orders, be void.
This morning, I was surprised to establish that following the advice of Hon. Settlement Chikwinya, a member of the Hon Mliswa Committee, that Mr. Mawere had written the following letter to Mr. Chokuda:
This letter was written on 28 November 2018 and the contents would seem self-explanatory.
To the extent that this letter was informed by representations by a member of the Committee that the meeting that Hon. Mliswa had convened was on the diary of the Committee, it became necessary for Mr. Mawere, a shareholder of SMM Holdings Private Limited (SMM), to also be allowed to make submissions on the legality and constitutionality of the Reconstruction Act.
In my books, it would be a futile exercise for any shareholder to seek remedies from the Court without challenging the moral, legal and constitutional basis of a law that permits a Ministerial order to rank equal or even senior to a judicial order.
I was surprised that even Hon. Mliswa does not seem to know that a law that is patently inconsistent with the bill of rights that are entrenched in the 2013 Constitution is invalid and should have no force and effect.
Listening to NVH, it became clear to me that the purpose of giving NVH audience was to allow him to attack Hon. Chitando on his former role as the Chairman of Hwange and lead to the inescapable conclusion that he should be barred from dealing in the Hwange matter.
It would appear that the mischief intended by seeking NVH into the Committee’s record on Hwange was exposed prior to the meeting leading to the other members of the Committee raising serious objections to the decision by Hon. Mliswa to use the Committee for ulterior purposes.
Hon, Mliswa knew and ought to have known that outside talking about the legal and constitutional issues, NVH had no authority to speak on behalf of Hwange notwithstanding the fact that he claims to be the second largest shareholder.
With respect to the SMM matter, I have now had the opportunity to read from Mr. Mawere’s share in the Friends of SMM’s (FOSMM) whats up group that I belong to:
It is clear from the messages attached hereto that Mr. Mawere wrote a formal letter to Mr. Chokuda that was received.
It is also not in dispute that Mr. Chokuda’s record is that he apparently directed the Committee Clerk to engage the Committee Chairperson and to advise Mr. Mawere accordingly.
Mr. Chokuda then seem to have apologized to Mr. Mawere as follows: “Accept my apologies if that did not happen. Will follow up with them.”
Mr. Mawere responded by saying that: “No one contacted me and what I heard yesterday from Hon Mliswa was disturbing and contemptuous of the process that he had recommended apparently for me to approach you.”
The last communication between Mr. Mawere and Mr. Chokuda seems to have been at 8:13am this morning.
Notwithstanding, Hon. Mliswa seems to have exposed the fact that he made the Committee made the decision to deny Mr. Mawere audience without even having the courtesy and decency of asking him about what he intended to contribute to the matters in dispute.
As I listened to the interview that Hon. Mliswa had last night and the misleading response he gave to the questioner in relation to SMM’s status and the manner in which Mr. Mawere has been treated since 2004, I could not help but wonder whether Hon. Mliswa is a villain who is driven by agendas or he is constructively a victim of ignorance and illiteracy.
Because of his “known it all” and domineering approach to any issue, it is clear that the agenda of the Committee could possibly have been compromised and the events of yesterday cleared my mind that not all the members have been sold to Hon. Mliswa’s cavalier antics.
This is what he said yesterday on the SMM matter in response to this question: “My question to Hon. Mliswa is about SMM and why Mawere has been treated unfairly?” He said as follows: “I think the SMM issue again, I think this is an issue of a company went under reconstruction. I ask myself whether reconstruction works because so far it has achieved the results in terms of resuscitating the mine itself – We have said that through the ZMDC enquiry we shall include SMM. He (Mr. Mawere) wrote to us as the Committee saying that he wanted to appear before us but we said SMM was put under ZMDC – we need to inquire into their operations – the right to appear and contribute is universal and Mr. Mawere cannot be denied this right – that is what parliament operates – no one can stop anyone to appear. In fact, last time in the last Parliament we visited the mines and we had intended to call Mr. Mawere. But definitely we will ask him to come and make his submissions but in the context of SMM as a subsidiary of the ZMDC.”
When one carefully reviews the above, it becomes abundantly clear that Hon. Mliswa is a devious character. Firstly, the official position of the Ministry of Mines as represented in court papers under oath is the SMM in under reconstruction.
This position as set out in the judgement below.
Hon. Mliswa knows and ought to know that Hon. Chitando’s predecessor ruled that SMM is a company that is still under reconstruction and as such the Minister of Mines is the only one with jurisdiction to deal with its matters.
In addition, the Learned Judge underscored that SMM’s status remains as it was established by the Minister of Mines through the notice in the Government Gazette of 6 September 2004.
It is also the case that the Minister of Mines had argued that the applications by Mr. Mawere and the affected parent companies of SMM were fatally defective in that there was a mis-joinder on the part of the Minister of Mines being cited as the First Respondent in the matter and non-joinder on the part of the Minister of Justice under whose purview the Reconstruction Act falls.
It is then surprising where the Mliswa Committee obtained the facts to support the contention that SMM is a subsidiary of ZMDC.
I am still trying to struggle with the idea that SMM has been under reconstruction for the past 14 years. What kind of nonsense is this that would permit this absurdity to have a live and be confirmed as legitimate by the Mliswa Committee.
I understand that Hon. Mliswa who seems to be the puppet master has already exposed the contempt with which he holds Mr. Mawere, a bona fide shareholder who is given less respect that NVH who Hon. Mliswa was willing to energetically and enthusiastically as a more worthy witness for the Committee.
Mr. Mliswa clearly believes that the SMM matter has already been resolved and Mr. Mawere should come before the Committee as a witness in a matter involving an organization that he neither a shareholder nor a director.
In what capacity would Mr. Mawere come before this Community if he has nothing to do with SMM? This question is yet to be answered but clearly Hon. Mliswa has no appetite to deal with this question.
The only reason SMM would be a subsidiary of ZMDC is if the company has already been nationalised.
Yet the irony that is easily lost in the exuberance of Hon Mliswa is that there is no provision in the Constitution that permits the expropriation of private property,” said Ms. Mutizwa.