My problem with the likes of Mr. Lloyd Msipa, contends Ms. Miriam Mutizwa

Ms. Miriam Mutizwa, the founder of a group under the name Legal Eagles that seeks to provide a platform where insights, ideas, knowledge and experiences are exchanged with a view to broadening and deepening our understanding on concepts around legal and constitutional questions, contends that people like Mr. Lloyd Msipa who are generous with opinions on many things actually pose a real and systemic problem to the democratization of democracy in Zimbabwe.

This is what he posted on his Facebook Wall:

Mr. Msipa contends that it is important that companies like Zisco be brought into back into full production.

It is not clear in what capacity, he chooses to make this pronouncement.

He is neither a shareholder or director of the companies he chooses to speak on behalf of without proving his authority and incumbency.

It is not unusual for people like Mr. Msipa to pretend to be relevant on matters that fall outside their personal knowledge and interest.

The propensity to compound opinions is one of the big challenges we face as human beings.

He then proceeds to state that: “Hwange is the company under current probity,” without asking a more pertinent question as to who should a company’s affairs be accountable to in a constitutional democracy.

It is significant that Mr. Msipa is a member of the Legal Eagles community whose members will certainly benefit from his understanding of the law and constitutional questions.

I was expecting that he would complete his bold assertion in relation to probity by suggesting in whose interests such probing should be vest. Clearly, Mr. Msipa is oblivious of the fact that a company is a creature of law and its control and management is and ought to be vested in its directors who are appointed in terms of law by its shareholders.

What troubles me is that vested with this corporate knowledge, Mr. Msipa has chosen to be a cheerleader of lawlessness. He sees no evil in him talking about Hwange outside the four corners of the law which limits third parties from illegally accessing the records of a company.

I find it troubling that Mr. Msipa would seek to make an irrelevant point in relation to Mr. Nicholas Van Hoogstraten’s status as a foreign investor by suggesting that because he is ordinarily a resident of Zimbabwe he should be ineligible to represent himself as a foreign investor.

Mr. Msipa knows and ought to know that the share register of Hwange would show who is who in the shareholder mix. It does not follow that the holder of the shares in Hwange ought to be Mr. Van Hoogstraten in his personal capacity.

It could well be that the shares in question are held by corporate entities that are domiciled in foreign jurisdictions. In addition, it does not mean that as a shareholder he has an obligation or right to know about the operational and financial affairs of Hwange as this is the domain reserved by law for directors and not shareholders,

Mr. Msipa like me should be worried when a shareholder appears to know what is going on in a company he holds or may hold shares in while enjoying the benefits of limited liability in respect to the company.

It is not clear what Mr. Msipa is trying to say by stating that: “Hwange represents everything that is wrong with Zimbabwe,” implying that Zimbabwe, a construct of the people of Zimbabwe, has a life similar to human beings.

Hwange is a company limited by shares and its operations fall within the ambit of its bona fide stakeholders which exclude by design and operation, all of us who fall outside its domain.

I listened to the conversations that took place on Monday between the members of the Portfolio Committee and I could for the first time truly appreciate why Rhodes was so keen to promote English civilization in distant shores.

I chose to live in the UK and acquire the citizenship of this country precisely because of this idea called civilization that makes common sense common when it is rational and logical.

Mr. Msipa would like the world to accept that what was at issue were personality and political/tribal differences between members of the Committee some of whom objected to granting Mr. Van Hoogstraten audience to make his submissions to the Committee and others including its Chairman, Hon Mliswa, who wanted to entertain Mr. Van Hoogstraten.

It is instructive that Mr. Msipa would have the audacity and authority to say: “Contrary to the rules of Portfolio  Committees, personality and party allegiances are very visible. Completely shocked that a fairly level-headed MP, Hon Settlement Chikwinya, was not able to put aside his party allegiances,” when in truth and fact he is not a member of Parliament and also a member of the Committee in which the dispute arose.

Clearly a point was missed by Mr. Msipa as to the true nature of the dispute that arose on Monday. At issue was whether the conduct of Hon. Mliswa by independently arranging for Mr. Van Hoogstraten to make submissions about the affairs of a company whose control and management had been divested by law, the Reconstruction Act, could appear before the Committee in his capacity as a shareholder.

It is trite that in terms of the operation of the Reconstruction Act, the rights and freedoms of shareholders in relation to their company are divested from them by a Ministerial order.

I shudder to think what Mr. Msipa who has chosen to hole himself in the UK while cheerleading his colleagues in government to be experts on lawlessness would think if in the UK, a Minister in Mrs. May’s cabinet were to be given authority to divest and deprive shareholders of their rights in relation to their companies without the involvement of the judiciary.

It is the case that Mr. Msipa knows and ought to know that the Minister of Justice is permitted to issue extrajudicial orders that the Courts have no right to alter and even cancel.

The role of the judiciary is simply to confirm a quasi-judicial order placing the Minister as a super quasi-judicial officer in a matter that he has an interest in especially having regard to the fact that the primary purpose of this Act is give preference to the so-called state as a creditor of a private company.

Mr. Msipa knows and ought to know that any act or deed that is of a self-help nature is inimical to the rule of law and can, therefore, never pass any constitutional muster.

Against the above backdrop, it was within the Committee’s jurisdiction to interrogate the existence and operation of this law.

The fact that Mr. Msipa could conclude that what was at play on Monday was driven by party dictates exposes the problem of illiteracy that is so pervasive in Zimbabwe.

Notwithstanding, Mr. Msipa has chosen to be part of the problem by electing to be ignorant on what matters.  There mere fact that this Act exists must be a cause of concern to any rational person.

It would appear that Mr. Msipa is of the view that the law is legal and constitutional. It is this point that I have been making that the AG who in terms of s 114(4)(d) of the Constitution has the duty to promote, protect and uphold the Constitution should be fired for suggesting that this law could possibly pass the constitutional muster.

I would have thought that the decision by Mr. Msipa to choose to be in the UK and not in Zimbabwe could have been informed by some rational choice including the fact that in the UK a law of this nature would never find life.

This law poses so grave a threat to the rule of law and constitutionalism that any tolerance of this kind of law is sentence to unemployment and poverty.

It is shocking that Mr. Msipa who has travelled so far in search of happiness would agree with the absurdity implied in the law that if a creditor of a company is a government or government institution that the protection provided in terms of s 69(2) of the Constitution must evaporate to allow a creditor to write his own order.

I think even Mr. Msipa would agree that in terms of s 69(2) of the Constitution, the existence and quantum of debt are disputes that can only be resolved by an independent and impartial tribunal.

However, in terms of the Reconstruction Act, it is the Minister who targets the victim, declares unilaterally the existence of a debt obligations, then proceeds to determine unilaterally and arbitrarily who is the state in respect of the Act, and the determine the quantum of the alleged indebtedness, and then declare that the targeted pray is unable to pay its alleged obligations and finally determine insolvency without the knowledge and involvement of the targeted victim.

If Zimbabweans had not been subjected to injustice and tyranny in the past, one would expect a person like Mr. Msipa to behave in the manner he is now behaving presumably for political expediency.

Mr. Msipa agrees with the premise that is at the core of the morality of the Act that the state is and must be a senior creditor who can write its own laws and execute them regardless of the injury caused on the targeted victims.

He advances the argument that if a company in the opinion of the Minister of Justice is unable to meet its obligations, it must be stripped of all constitutional and legal defences.

Mr. Msipa then invoked Mr. Mawere whose company, SMM was the first victim, when in 2004, the then Minister of Justice, Hon P. Chinamasa, issued a reconstruction in relation to SMM.

Below is an extract of Hon. Chinamasa’s affidavit in support of an application to confirm the reconstruction order that he issued in relation to SMM:

Even a blind person would know better than what Mr. Msipa pretends not to know. In his own words, Hon Chinamasa admits that he issued an order in relation to SMM pursuant not to a law but to a decree promulgated by former President Mugabe.

He openly acknowledges that at the time he issued this order, there was no provision in the Reconstruction Regulations, the precursor to the Act, for him to involve the judiciary at all.

He then confesses that notwithstanding the involvement of the courts, amended the Regulations by introducing after the event, a requirement for the confirmation of a reconstruction order.

The problem with people like Mr. Msipa is that they often substitute facts with fiction. In the matter of SMM, the Minister said in a court deposition that he was in a hurry and, therefore, forgot to involve the judiciary in his enterprise to divest SMM from its shareholders.

Hon Chinamasa, a lawyer by training like Mr. Msipa, does not even try to pretend that what he is doing is disgusting and contemptuous of the rule of law.

The only lesson that one can learn is that he knew and ought to have known that the judiciary and parliament were captured sufficiently enough to give him confidence to operate outside the confines of legality and constitutionalism.

Hon Chinamasa, the father of this draconian law, then submitted to a Judge in chambers that: “The new section of the Reconstruction Regulations provided that the Attorney General was: “At any time before a scheme of reconstruction is approved (by the Minister)” to apply in Chambers for the confirmation of the reconstruction order.”

Even Mr. Msipa cannot deny that in relation to SMM, the shareholders and directors of the company were divested of their control and management of the company by a naked Ministerial order without the involvement of the judiciary.

In addition, Hon Chinamasa makes a startling revelation that the regulation only required that the application for confirmation be made at any time before the approval of the Scheme of Reconstruction.

It is the case that the only difference between the Act and the regime created for SMM is that the period within which to secure a confirmation by a Judge was limited to 30 days from the date of issue.

I trust that next time Mr. Msipa ventures into subjects that he knows little about, he should do so with caution.

I will wait for Mr. Msipa to respond to the above in a mature, composed and balanced manner. I have tried in vain to engage him since yesterday in the hope that we can work together to build a Zimbabwe we want.

The facts above confirm that the Zimbabwe that Mr. Msipa seems to be advocating for without facts is more dangerous than the animal kingdom.”

Mr Chitambo, the Secretary General of the Friends of SMM (FOSMM) organisation, had this to say: “When President Mnangagwa was appointed as Vice President by former President Mugabe, we wrote letters to him and also to former VP Mphoko to draw their attention to this toxic law and the facts surrounding the extrajudicial placement of SMM under reconstruction.

We said then as I say now this law has no place in any civilized society. The fact that VP Mnangagwa ignored our pleas confirms that he is part of the problem.

However, we have noted that where fatalism creeps into public life the consequence is low levels of active citizenship allowing for a few seemingly educated but illiterate people like Mr. Msipa to be opinion makers.

It is indeed tragic that the whole business of politics has been effectively subcontracted out to a band of professional mercenaries, money people, outreach people, message people, research people leaving the rest of us to feel like we are second class citizens.

Many of us have become sufficiently demotivated to learn more about how things work using real life experiences like the SMM matter has allowed us to explore constitutional issues in a dynamic manner.

We as FOSMM have chosen to confront the problem of illiteracy and the hijacking of agendas by people like Mr. Msipa so that we can provoke, ignite and inspire active citizenship.

I cannot conclude that Mr. Msipa is simply motivated by will ignorance but by an agenda that seeks to distort and divert attention to what needs to happen in Zimbabwe to make it great.

This is why I think it is so important in our time right now to re-imagine civics as the teaching of power.  This position is fortified when people like Mr. Msipa chose to continuously abuse the unsuspecting general public in the name of some voodoo scholarship to think that people like the AG is for his constitutional purpose.

I think the challenge has never been more important and urgent than at this defining moment in Zimbabwe’s history where companies like Hwange have been subjected to this corporate tyranny.

If we refuse to use victims like SMM and the Maweres while they are still alive, what is our future?

If we refuse to learn about power and its use and abuse, if we do not wake up, and if we choose to be bamboozled by people like Mr. Msipa, we will always find ourselves alienated from our inherent power.”

 

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