Mnangagwa appointed Chinamasa to head the AirZimb board in
June 2019.
Mnangagwa is cited as the first respondent while prominent
Harare lawyer Edwin Manikai is the second respondent according to papers filed
at the ConCourt on December 17.
In the application, Tichaona Mupasiri, indicated in his
founding affidavit that no relief was being sought from Manikai as he is cited
to assist the court in determining the matter in the interest of justice.
He said at the core of the application was Mnangagwa’s
actions concerning the affairs of SMM Holdings (Private) Limited (SMM), AirZim
(Private) Limited and Hwange Colliery Company (HCCL).
“This application is concerned about holding public office
bearers to account for their conduct and ensuring that the first respondent’s
conduct is subject to public scrutiny and interrogation,” he said.
Mnangagwa and Manikai have not yet responded to the
application.
In his application, Mupasiri said Mnangagwa appointed
Chinamasa to head AirZim, a company whose control and management was divested
from its directors and shareholders.
He said the control was vested in an administrator
appointed by the Justice, Legal and Parliamentary Affairs minister pursuant to
the operation of the Reconstruction of State-Indebted Insolvent Companies Act
2005.
“By engaging in a self-help scheme, interposing himself as
a shareholder of Air Zimbabwe, the first respondent failed to fulfil his
obligations in terms of s90(1) and s90(2)(c) by clothing himself with the right
to amend to the Reconstruction Act that specifically vests the control and
direction of the company under the administrator,” the court papers read.
“By knowingly and intentionally appointing Chinamasa to be
a chairman of Air Zimbabwe, a juristic entity in its own right, the first
respondent had no title to do and usurped the power and authority of
shareholders of the company, to the extent that the then Companies Act could
operate concurrently with the Reconstruction of State-Indebted Insolvent
Companies Act.
“By unilaterally and arbitrarily involving himself in the
affairs of Air Zimbabwe (under reconstruction), the first respondent knowingly
and intentionally offended the fundamental rights and freedoms of shareholders
and creditors involved in the affairs of the company by appointing a
representative of the company who was not accountable to shareholders but him.”
Mupasiri argued that Mnangagwa failed to take cognisance of
the fact that the right to appoint directors fell within the scope of the
exercise of fundamental rights which was inconsistent with duties imposed on
him under the Constitution rendering his conduct unconstitutional and invalid.
“By allowing and actively participating in the appointment
of Chinamasa whose effect was to create an absurdity of a company having two
centres of control, the first respondent acted ultra vires s6 of the
Reconstruction of State-Indebted Insolvent Companies Act and in so doing failed
to uphold, defend, obey and respect the Constitution…”
He argued that Mnangagwa had constructive knowledge that in
relation to SMM, at the time he assumed the office of President, that shares
had already been issued to Nicdale Investment, a purported proxy for the State
as contemplated in the Reconstruction Act.
“Notwithstanding this knowledge, (he) has failed, refused
and neglected to ensure that no agency can exist between an administrator in
respect of a reconstructed company as would have been the case prior to the
issuance of any shares to the State as prescribed by the Act.
“In the premise, the failure to divest the administrator of
the control and management of a reconstructed SMM constitutes a material
violation of the Reconstruction Act and the Constitution in terms of s90(1) and
s90(2)(c) of the Constitution as the role of the administrator in relation to
SMM during the first respondent’s tenure has no legal authority to support it,”
he said.
“This conduct has the effect of undermining the doctrines
of separation of powers and equality on which the rule of law as set out in
s90(2)(c) is premised. Accordingly, the first respondent failed to fulfil his
obligations in terms of s90(1) as well.” Newsday
0 comments:
Post a Comment