Sharing insights on the Reconstruction Act.

  1. [2:18 PM, 10/20/2016] Adv. Thuto Mavula: Let’s look at PCA s2(d) in relation to a specified person

Recon Act S3 specifically lists artificial persons ie corporate bodies as the subject of specification.

You get the point I ma trying to make in so far as the 2 acts are concerned? Their reach in so far as their subject is?

  1. [2:20 PM, 10/20/2016] MD Mawere: It is a fact that when the specification order was issued the Recon Act was not born.
  2. [2:21 PM, 10/20/2016] Norman Mukandagumbo: “Any person” would include the appellant or any registered company.

The Interpretation Act [Cap 1:01], s 3 defines a person to include any company incorporated; or any local or other similar authority. It is irrelevant whether a person is a resident or citizen of another country as long as that person has done one of the things mentioned in s 6(1) of the Act. His companies are incorporated according to the laws of

Zimbabwe………………………..CHIDYAUSIKU……….J

Maps
Maps
  1. [2:21 PM, 10/20/2016] Adv. Thuto Mavula: What then happens when the Recon Act comes into the picture is an amendment to s15,s282 and s37 of PCA to align it with the provisions of the Recon Act
  2. [2:21 PM, 10/20/2016] Norman Mukandagumbo: SC 67/07…………PCA
  3. [2:22 PM, 10/20/2016] Adv. Thuto Mavula: When was the SI in terms of the Predential decree gazetted?
  4. [2:24 PM, 10/20/2016] Adv. Thuto Mavula: This was a matter of Judicial Interpretation of which otherwise may be interpreted differently by another bench but not in the balck and white in the Act…is it not so?
  5. [2:28 PM, 10/20/2016] Norman Mukandagumbo: @Thuto…………its suprising how a company can be found guilty of corruption…….divorcive of its directors
  6. [2:32 PM, 10/20/2016] Norman Mukandagumbo: if we were to adopt Chidyausiku’s defination of a person in terms of the PCA……….what absurdity will arise then
  7. [2:43 PM, 10/20/2016] MD Mawere: Bizarre
  8. [2:43 PM, 10/20/2016] MD Mawere: Friday 3 September 2004
  9. [2:44 PM, 10/20/2016] MD Mawere: The decree on 6 September 2004
  10. [2:56 PM, 10/20/2016] Adv. Thuto Mavula: No absurdity at all its a point of different interpretation. A technicality available due to the silence of the act in respect to the artificial person
  11. [2:58 PM, 10/20/2016] Adv. Thuto Mavula: If the PCA sufficiently covered the issues why then would the Recon Act be invoked
  12. [2:59 PM, 10/20/2016] Tawanda Madamombe: Is it technical,,i thought it was drafted which full understanding of constitutionalism
  13. [3:00 PM, 10/20/2016] Tawanda Madamombe: With
  14. [3:08 PM, 10/20/2016] Norman Mukandagumbo: constitutionalism…………..???? giving someone unfettered powers to arrest, to detain, to judge…., compelling someone to incriminate himself
  15. [3:23 PM, 10/20/2016] Tawanda Madamombe: My point is the act was misinterprated even in its appliacation
  16. [4:57 PM, 10/20/2016] MD Mawere: Back to life
  17. [5:07 PM, 10/20/2016] MD Mawere: The issue of criminality in so far as acts that defeat the ends of justice are concerned can come in. Did Chinamasa have constructive knowledge that the allegations that informed the issuance of my warrant of arrest on 17 May 2004 and subsequent arrest on 25 May 2004 were the same facts and circumstances that informed my specification on 9 July 2004 and the appointment of an Investigator on 13 August 2004 followed by the specification order in respect of SMM on 26 August 2004.

If the Minister was aware that the extradition case against me was dismissed in SA and therefore as fact, the basis of the externalization case was unfounded, any impartial and detached Minister ought to have stopped there.

Chinamasa knew and ought to have known that no facts existed in the jurisdiction of Zimbabwe to prosecute an allegation in respect of facts and circumstances that could have only taken place in South Africa.

The question that then arises is whether in specifying SMM, the Minister sought to extend the application of the PCA to South Africa where the extradition matter was exhaustively dealt with.

  1. [8:38 AM, 10/21/2016] +27 78 202 5720: http://www.newzimbabwe.com/business-31836-Coca+Cola+terminates+Delta%E2%80%99s+bottling+deal/business.aspx
  2. [8:38 AM, 10/21/2016] +27 78 202 5720: Econet or Nssa mukana wamuka.
  3. [8:39 AM, 10/21/2016] MD Mawere: Sharing insights
  4. [21/10, 07:54] mdmawere1: Morning
  5. [21/10, 08:06] Adv T Mavula: Morning
  6. [21/10, 08:07] mdmawere1: How are you this morning
  7. [21/10, 08:28] Adv T Mavula: I am well just pulling through as the days come
  8. [21/10, 08:29] Adv T Mavula: This will be our discourse today. But we can start a but later or at midday
  9. [21/10, 08:30] mdmawere1: How best can we frame questions
  10. [21/10, 08:34] Adv T Mavula: We interpret the Act in light of the SMM-Petter-SAS arrangement.

Was there an intention to defraud?

Were the transactions bona fide or corrupt? Is the allegation of mala fides made true ?

Could SAS be an agent as per the PCA? Was there a principal/agent set up?

Then we look into the cession proceedings themselves

  1. [21/10, 08:35] mdmawere1: What would be the jurisdiction of the alleged crime
  2. [21/10, 08:37] Adv T Mavula: The cause of action arose in RSA that should be the domicile of the crime
  3. [21/10, 08:38] Adv T Mavula: Which brings us to the issue we discussed earlier of overreaching of zim law into that jurisdiction
  4. [21/10, 08:38] mdmawere1: How can a statute in Zimbabwe regulate the facts and circumstances that occurred outside its borders
  5. [21/10, 08:39] mdmawere1: Does Zimbabwean law have extra-territorial jurisdiction Mutumwa Mawere a freeman:South African Courts | ZimboconnectZIMBABWEAN business mogul Mutumwa Mawere is a free man after a South African magistrate dismissed an application by Zimbabwean police for more time tozimboconnect.com
  6. [8:44 AM, 10/21/2016] MD Mawere: Shared knowledge holds the promise:
  7. [21/10, 08:39] Adv T Mavula: It doesn’t have
  8. [21/10, 08:40] mdmawere1: So how can the PCA be invoked for things that are inherently offside
  9. [21/10, 08:40] Adv T Mavula: It can only be cited in case law as a persuasive source not in its form as a statute but as the decision of the court
  10. [21/10, 08:41] mdmawere1: Are you aware of the extradition case?
  11. [21/10, 08:42] Adv T Mavula: We found that there was a vehicle for this through the reps of SMM and the judges involved
  12. [21/10, 08:42] mdmawere1: http://zimboconnect.com/2015/01/mutumwa-mawere-a-freemansouth-african-courts/
  13. [21/10, 08:42] Adv T Mavula: Yes the one which was handled by SAPS?
  14. [21/10, 08:43] mdmawere1: http://allafrica.com/stories/200407010178.html
  15. [21/10, 08:43] mdmawere1: So do you think that Chinamasa had no constructive knowledge of the extradition matter?
  16. [8:52 AM, 10/21/2016] MD Mawere: A platform for sharing;
  17. [21/10, 08:47] Adv T Mavula: He certainly had knowledge
  18. [21/10, 08:47] Adv T Mavula: He was actually was instrumental in the process if I were to bet my last penny
  19. [21/10, 08:49] mdmawere1: If he had constructive knowledge, do you think my subsequent specification in Zimbabwe on the same facts and circumstances that the government had failed to assert in SA constituted the intended use of power power?
  20. [21/10, 08:51] mdmawere1: What is the law on using different forums to determine a dispute between the same parties of the same facts?
  21. [8:54 AM, 10/21/2016] Dr Vusumuzi Sibanda Sibbs: Good morning I would caution against rushing to dismiss the ability of the case of SMM being heard in South Africa. Thus us possible under private law, conflict of laws. The cases being dealt with normal have to pass two factors namely lexi fori and lexi causae and locus standi is founded in various ways namely that SAS was RSA or the business was part conducted in RSA and so forth. So yes the case running in RSA is not completely a faulty matter on its own but all these need careful consideration.
  22. [8:57 AM, 10/21/2016] +44 7481 818249: Can one file a case in SA when some of the arguments touch on government decisions? Couldn’t the respondents then just please sovereign immunity?
  23. [9:02 AM, 10/21/2016] MD Mawere: That is not the question in the forum. The question is the legality and constitutionality of using the Zim jurisdiction to deal with a dispute relating to a matter that occurred in a foreign jurisdiction. Suppose a Zimbabwean commits murder in a foreign jurisdiction, can the jurisdiction of his country of birth be competent to resolve the murder issue?
  24. [9:03 AM, 10/21/2016] MD Mawere: Perhaps you can expand on the questions and relate them to the issue in the forum.
  25. [9:06 AM, 10/21/2016] Dr Vusumuzi Sibanda Sibbs: There is a logical argument which can emanate from there but I think you just need to rephrase it until it comes out of the box clearly in terms of the status or gown warn by Chinamasa when he approached the RSA case.
  26. [9:08 AM, 10/21/2016] MD Mawere: The Attorney General approached the SA courts and not Chinamasa but after failing to secure extradition, Chinamasa took over the matter as the driver
  27. [9:08 AM, 10/21/2016] Dr Vusumuzi Sibanda Sibbs: That is called the lexi causae, to answer that question yes it is possible Sir.
  28. [9:09 AM, 10/21/2016] MD Mawere: How so? Is the Zimbabwean jurisdiction competent to adjudicate a dispute that arose in another state350
  29. [9:09 AM, 10/21/2016] Dr Vusumuzi Sibanda Sibbs: Still the AG represents the gvt and I think that would pass as a gvt matter and not private matter.
  30. [9:12 AM, 10/21/2016] MD Mawere: Indeed. It was a government matter and was informed by the realisation that the SA courts were necessary to determine whether the dispute and person could be extradited to Zimbabwe. If the SA courts was persuaded that the matter in question could be resolved in Zimbabwe, then extradition would have been granted.
  31. [9:12 AM, 10/21/2016] Dr Vusumuzi Sibanda Sibbs: In conflict of laws that is exactly what happens, the courts finds the aspects of the dispute in terms of the locality and other factors to determine that which law and if which forum will be used. The court will indeed decide based on that which is why in mercantile law matters must preferable show which law should be used to deal with their disputes.
  32. [9:13 AM, 10/21/2016] MD Mawere: As Adv Mavula has correctly pointed out, the specification flowed directly from the dispute relating to the cession affair. Do we agree on this?
  33. [9:20 AM, 10/21/2016] Dr Vusumuzi Sibanda Sibbs: I think that you are correct there. The matter should have been extradition only if the matter involved gvt and then that would have settled the matter there and if there was a prima facie case or not
  34. [9:22 AM, 10/21/2016] MD Mawere: Having failed to secure extradition in a matter in which both the govt and the accused were represented do you believe that any new facts would have existed that could not be presented on the court date
  35. [9:32 AM, 10/21/2016] Dr Vusumuzi Sibanda Sibbs: Once extradition failed depending on the reasons, the gvt could have pursued a strictly private matter not with any official garments that gave it preference over the other party to the dispute.

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